Contributed by Roger Martin, 2L Student by night at Univ. of San
Diego, Patent Agent by day at [email protected]
** Marbury v. Madison, (1803)
2. Facts: Marbury was one of the famous "midnight judges" whose
commission had been signed by the Secretary of State (Marshall), but had
not been delivered before the morning that Jefferson took office.
3. Procedural Posture: Marbury went directly to the Supreme Court to
compel Jefferson's Secretary of State (Madison) to deliver their
4. Issue: Whether the Supreme Court has the power to review the
legislative acts of the Congress to determine their constitutionality.
5. Holding: Yes.
6. Majority Reasoning: Marshall stated that Marbury had a right to his
commission once it was signed. Further, Section 13 of the Judiciary Act
of 1789 gave the supreme court the right to issue a writ of mandamus
against persons holding office. Thus, it would appear that Marbury has a
remedy. However, Article III Section 2 of the Constitution states that
the supreme court shall have original jurisdiction in cases "affecting
Ambassadors, other public Ministers and Consuls, and those in which a
State shall be a party," and "in all other cases,...shall have appellate
jurisdiction." Since a writ of mandamus is an original action, Section
13 of the Judiciary Act must be contrary to the constitution, because it
allows the Supreme Court to hear cases of original jurisdiction for
persons besides ministers, consuls and ambassadors, etc. If the
constitution is the supreme will of the people to limit government, then
the legislature can not alter it at will. Thus, the legislature can not
be allowed to pass laws repugnant to the constitution. Since it is the
Supreme Court's role to interpret laws and resolve conflicts between
competing laws, and the Constitution is the supreme law of the land,
then the Supreme Court has the power to interpret the Constitution and
decide if a law passed conflicts with it.
** Martin v. Hunter's Lessee, (1816)
2. Facts: Fairfax, a British loyalist, owned land in Virginia. A
Virginia state law provided for the seizure of Fairfax's lands prior to
1783. Virginia granted the land to Hunter. Martin was the inheritor of
the land from Fairfax. Martin claimed that the Peace Treaty of 1783 and
the Jay Treaty of 1794 protected the land from seizure.
3. Procedural Posture: The Virginia court, in the original case, found
for Hunter The Supreme Court reversed, ordering the Virginia court to
enter judgment for Martin under the authority granted by Section 25 of
the Judiciary Act which gave the Supreme Court the power to review final
decisions of the highest state courts rejecting claims based on federal
law. The Virginia state court refused to comply with the order, claiming
that Section 25 was unconstitutional, and the Supreme Court had no
constitutional right to review the final decisions of the state courts.
The case is again being reviewed by the Supreme Court.
4. Issue: Whether Section 25 of the Judiciary Act of 1789 is
constitutionally valid, giving the Supreme Court the right to review the
final decisions of state courts rejecting claims based on federal law.
5. Holding: Yes.
6. Pro Argument: Without Supreme Court review of state court decisions,
there will be no other mode by which Congress can extend the judicial
power of the United States to cases of federal cognizance which arise in
the state courts, resulting in non-uniformity of decisions among states.
7. CON Argument: The constitution does not provide explicitly for
Supreme Court review of state court decisions. Since it must have been
foreseen by the drafters that conflicts would arise, the omission is
evidence that the framers felt that such a powerful tribunal would
produce evils greater than those of the occasional collisions which it
would be designed to remedy. Thus, once an action is brought in state
court, the federal court's sole remedy is to shift it to a lower federal
court before it gets to the final court of the state, or simply to
advise the high state court that they have improperly interpreted the
constitution. The states are dually sovereign with the federal
government, and not subject to the laws of Congress which limit their
8. Majority Reasoning: In Article III, the Supreme Court is given the
judicial power which "shall extend to all cases." Thus, it is the nature
of the case and not the court of origin that determines whether the
Supreme Court has appellate jurisdiction. The Supreme Court appellate
power is not limited only to cases that come up through the lower
federal courts. Also, the Constitution was designed to operate upon the
states themselves, and not just the persons within the states. Thus, the
states themselves are not equal sovereigns with the federal government,
but rather subject to its law-making capability. Furthermore, even if
the state courts do not abuse the power of the constitution, they are
likely to rule differently on it from state to state. Thus, the need for
uniformity in decisions requires an ultimate single court of last resort
which exercises review over all states. Lastly, there is substantial
historical evidence that the framers intended Supreme Court review of
state court decisions, as well as several previous cases which do so.
** Ex Parte McCardle, (1869)
2. Facts: McCardle was a newspaper publisher in the post-civil war
south. He was imprisoned for sedition.
3. Procedural Posture: McCardle brought a habeus corpus act under an Act
of Congress of 1867 which authorized the federal courts to grant habeus
corpus to anyone restrained "in violation of the Constitution", and gave
the Supreme Court appellate jurisdiction over such actions. However,
before it was ruled upon on the merits by the Supreme Court, Congress
passed another Act, expressly revoking the appellate jurisdiction for
these types of actions that it had previously granted in 1867.
4. Issue: Whether Congress can take away the jurisdiction of the Supreme
Court as to habeus corpus acts, which jurisdiction was granted in the
5. Holding: Yes.
6. Pro Argument: The appellate jurisdiction of the Supreme Court is
derived from Article III, Section 2 of the constitution, not from acts
7. Majority Reasoning: It is true that the appellate jurisdiction is
granted by the constitution, but in the same article, it is made
expressly subject to "such exceptions and under such regulations as
Congress shall make." Thus, Congress has the power to expand and limit
the scope of the appellate jurisdiction of the Supreme Court. Quite
simply, Congress was acting clearly within its power in both granting
and then repealing the specific jurisdiction to review habeus corpus
cases from the Circuit Courts pursuant to the Act of 1867. The Act of
1868 does not affect the appellate jurisdiction with regard to any other
** United States v. Klein, (1872)
2. Facts: Klein was pardoned by the president for aiding in the civil
war rebellion. A statute existed that would allow persons who did not
aid in the rebellion to recover land seized from them in the
Reconstruction. Previous case law had held that a presidential pardon
was conclusive proof that a person had not committed the crime.
3. Procedural Posture: A new statute was enacted by Congress while the
Klein case was pending appeal, reversing the previous tradition of a
pardon being proof of non-participation, and in fact making it
conclusive proof of actual participation. In addition, the statute
purported to remove federal court jurisdiction for all such claims
arising from pardons.
4. Issue: Whether Congress has the constitutional power to enact a
statute which limits the jurisdiction of the federal courts,
particularly the Supreme Court, when, by limiting said jurisdiction
would dictate the outcome of a particular case.
5. Holding: No.
6. Pro Argument: Congress has the power under Article III to limit the
appellate jurisdiction of the federal courts because of the specific
language "with such exceptions...as the Congress shall make."
7. Con Argument: Congress does not have the power to dictate the outcome
of any particular case because such would be contrary to the separation
of powers structure of the Constitution.
8. Majority Reasoning: The statute removing jurisdiction in this
instance was unconstitutional because it was only "a means to an end,"
to affect the outcome of this particular case. Dismissing the appeal
would allow Congress to prescribe the judgments of the Supreme Court
directly. The statute prescribed how the court should decide an issue of
fact, and it denied effect to a Presidential Pardon, thus violating the
separation of powers.
** Plaut v. Spendthrift Farm, Inc. (1995)
2. Facts: A Securities Act violation was committed. After Supreme Court
dismissal of the first action for being brought outside of the statute
of limitations, Congress passed a new section 27A to the Securities
Exchange Act, extending the statute of limitations in these cases, as
well as providing for the "reinstatement" of causes of action that had
been dismissed on statute of limitations grounds during the time of
pendency of the first action in this case, thus re-opening the case.
3. Procedural Posture: In the first action, the Supreme Court dismissed
the case for being brought outside of the statute of limitations (which
it has prescribed in the Rules). Congress' enactment of new section 27A
reinstated the action.
4. Issue: Whether Congress can reinstate a case that has been previously
dismissed on statute of limitations grounds.
5. Holding: No.
6. Pro Argument: Congress has the power under Article III to modify the
appellate jurisdiction of the Supreme Court, which includes statutorily
reinstating a class of cases.
7. Con Argument: Congress' power does not include reinstatement of
previously decided cases under new laws.
8. Majority Reasoning: Scalia stated that Article III not only gives the
federal judiciary the power to rule on cases, but to decide them,
subject only to review by superior courts in the Article III hierarchy.
"When retroactive legislation requires its own application in a case
already finally adjudicated, it does no more and no less than reverse a
determination once made, in a particular case.'" Such power is clearly
contrary to what the framers contemplated in the separation of powers.
It did not matter that the statute was with reference to a general class
of cases, and not ostensibly to a particular case, if it gave the
Congress the power to reinstate a case, it necessarily interfered with
the outcome of a particular case.
** Michigan v. Long (1983)
2. Facts: Long was arrested, and alleged that his search and seizure
rights had been violated.
3. Procedural Posture: The Michigan State Supreme Court ruled that the
police search did violated the Fourth Amendment and the Michigan
Constitution's own search and seizure laws.
4. Issue: Whether the Supreme Court has jurisdiction to review state
court judgments which concern federal issues, and which are not clearly
based on an adequate and independent state law grounds.
5. Holding: Yes. If the state court decision does not] indicate clearly
and expressly by means of a "plain statement" that it is alternatively
based on bona fide separate, adequate, and independent grounds the
Supreme Court has appellate jurisdiction to review the state court
6. Majority Reasoning: O'Connor stated that the Court must assume that
there are no adequate grounds when it is not clear from the opinion that
there were, and the opinion appears to rest primarily on federal law. It
was necessary out of respect for the independence of state courts that
the presumption of adequate state grounds go against the states so as to
promote clarity, thus avoiding excessive remands and advisory opinions.
This promotes uniformity in the states interpretation of federal law.
7. Dissent Reasoning: Stevens stated that it would be better to give the
presumption for adequate state grounds to the state, because of
historical concerns of judicial restraint. The Supreme Court should not
be involved unless there is a reason to vindicate the federal rights of
a party. A presumption against independent state grounds would have the
Court expounding their understanding of Constitutional law to the legal
community instead of primarily sitting to resolve disputes.
** McCulloch v. Maryland, (1819)
2. Facts: In 1816, Congress chartered the Second Bank of the United
States, which became active in Maryland. In 1818, the Maryland
legislature passed an Act to tax any bank not chartered by the
Legislature of Maryland, thus taxing the U.S. Bank. The law provided for
private remedies against the bank operators, of which, one was
3. Procedural Posture: The trial court entered judgment on the basis of
an agreed statement of facts (that the U.S. Bank was not chartered by
the Maryland legislature), and the Maryland Court of Appeal affirmed. An
appeal was taken by writ of error to the Supreme Court.
4. Issue: 1) Whether Congress has the power to incorporate a bank; and
2) Whether the state of Maryland may, without violating the
constitution, tax the U.S. Bank.
5. Holding: 1) Yes. 2) No.
6. Pro Argument: Although Congress does not have the enumerated power to
incorporate a bank, such power is implied by the "necessary and proper"
language of Article I Section 8.
7. Con Argument: Congress not only does not have the enumerated power to
incorporate a bank, but furthermore only has the powers that the states,
as independent sovereigns, give to it. This is evidenced by the
"necessary and proper" language which should be construed to be a limit
on Congressional power, implying only strict necessity.
8. Majority Reasoning: Marshall first noted that the Congressional power
established by the Constitution originates from the people, not the
states. Article II should be read in light of the previous Articles of
Confederation, which were unworkable because of their strict limitations
on express Congressional power. The Constitution, by nature, must be
general in order to adapt to unforeseen circumstances. Thus, there must
be some implied powers to allow Congress to exercise the broad range of
express powers given as means to ends. The language "necessary and
proper" should be construed to mean "convenient, or useful, or
essential" not as things that are absolutely necessary, otherwise the
word "proper" would be superfluous, and there would be no need to
include the word "absolutely" in the enumeration of powers to the
states. The "necessary and proper" language is included among the power
of Congress, not the limitations, and so should be read as enlarging the
scope of Congress' powers. All means which are appropriate and plainly
adapted to the exercise of enumerated powers are constitutional, not
just those that are strictly necessary. As to whether Maryland could tax
the federal bank, the power to tax something is the power to destroy it.
Since the states are necessarily inferior to the federal government, the
states do not have the power to "destroy" (by taxing) the federal
government. The people did not design to make their federal government
dependent on the states.
** Gibbons v. Ogden, (1824)
2. Facts: Gibbons was a former partner turned competitor of Ogden. Ogden
had a monopoly to operate steamboats on the New York Harbor from New
York City to New Jersey, and Gibbons was competing with him. Ogdens'
monopoly was granted by the New York state legislature. Gibbon's ferries
were licensed as "vessels to be employed in the coasting trade" under a
federal law of 1793.
3. Procedural Posture: The trial court granted an injunction against
Gibbons to stop operating his ferry. Gibbons brought an appeal to the
Supreme Court on the grounds that the statute granting a monopoly to
Ogden was unconstitutional as being repugnant to the commerce power
granted to Congress.
4. Issue: Whether Congress has the power to regulate the navigation of
steamboats on the New York harbor between New York and New Jersey, to
the exclusion of the state of New York.
5. Holding: Yes.
6. Pro Argument: The New York law is unconstitutional because it usurps
Congress' power to regulate interstate commerce, which includes
7. Con Argument: Congress does not have the power to regulate non-
commerce events such as "navigation." Also, Congress does not have the
power to regulate commerce that occurs internal to a state, only that
that occurs between two states.
8. Majority Reasoning: Marshall stated that the common understanding of
the word "commerce" necessarily included "navigation." Thus, Congress
has the right to regulate navigation as if it were expressly mentioned
in the Constitution. Congress has the power to regulate commerce "among
the several states." "Among" means intermingled with, not just between.
Thus, the commerce power extends internal to the states because commerce
transactions, which can affect the states generally, can originate and
terminate within the state border boundaries. Although it does not
extend to transactions which are completely internal to a state, the
commerce power would be useless if it could not extend beyond the state
boundaries because that is where the transactions occur. Lastly, the
commerce power is limited only by the constitution. The Congress has the
full and exclusive power to make rules by which interstate commerce is
to be governed. This power is centralized in one body, but it can act
wherever needed in the states.
** United States v. E.C. Knight & Co., (1895)
2. Facts: Knight acquired the stock of several other sugar manufacturing
companies, to control about 98% of the nation's sugar refining capacity.
3. Procedural Posture: The government brought a civil action under the
Sherman Act, which provided for penalties for "restraint of trade or
commerce among the several states," to set aside the acquisition. The
lower court dismissed the action, and the government appealed to the
4. Issue: Whether Congress had the power, under the commerce clause, to
regulate the monopolization of the means of manufacturing a good.
5. Holding: No.
6. Pro Argument: A monopoly of manufacture restrains the free trade or
commerce among the states, and thus is contrary to the Sherman Act.
Congress has the power to regulate the monopolization of manufacture
because it restrains free trade among the states.
7. Con Argument: A monopolization of manufacture is not possible. Even
if it were, such power to control it would necessarily extend to all use
of raw materials, and thus is beyond what the Sherman Act contemplates.
8. Majority Reasoning: If monopolization of manufacture could exist, it
could only have an indirect effect on interstate commerce. There is a
difference between "manufacture" and "commerce", namely that commerce
succeeds manufacture. Thus, controlling manufacture only indirectly
controls commerce. Congress does not have the power to control
manufacture because that would be too intrusive a power, necessarily
applying to all production of raw materials that could be manufactured
into a higher product and then subject to commercial interstate
transactions. Allowing the power to be construed this broadly would
leave no powers for the states to exercise pursuant to the tenth
amendment. All local commerce would then be subject to federal control.
Thus, the distinction must be made between activities that have a
"direct" affect on commerce, which Congress can control, and those which
have merely and "indirect" or incidental affect on commerce, which the
states are left to control.
** Houston E. & W. Texas Ry. Co. v. United States (The Shreveport Rate
2. Facts: The railroad had rail lines both within Texas, and between
Texas and Louisiana. As an incentive to promote Texas suppliers to sell
to Texas manufacturers, the railroad maintained lower rates for traffic
within the state of Texas, while charging disproportionately high rates
for traffic to Louisiana.
3. Procedural Posture: The Interstate Commerce Commission (ICC) set
rates for the transportation of goods from Texas to Louisiana, and
ordered the railroad to end its discriminatory practice of maintaining
lower rates for traffic within the state. The railroad challenged that
order, appealing to the Supreme Court.
4. Issue: Whether Congress, through the ICC, has the power to set the
intra-state railroad cargo rates of a carrier that has both intra-state
and inter-state lines, if such intra-state rates represent an unjust
discrimination against inter-state commerce.
5. Holding: Yes. "Whenever the interstate and intrastate transactions of
carriers are so related that the government of one involves the control
of the other, it is Congress, and not the State, that is entitled to
prescribe the final and dominant rule, for otherwise Congress would be
denied the exercise of its constitutional authority."
6. Pro Argument: Congress has not power to regulate the intra-state
7. Con Argument: Congress has the power to regulate intra-state rates if
they affect interstate commerce.
8. Majority Reasoning: Congressional authority extends to interstate
carriers as instruments of interstate commerce. This necessarily
includes the right to control all of their operations that have a "close
and substantial" affect on interstate commerce. The fact that the
carrier has intra-state business as well does not diminish Congress'
power to regulate the interstate portion by preventing injury to it.
Otherwise, the commerce power would have no bite among carriers with
both lines. Furthermore, Congress had the power to affect the intrastate
lines in other areas, such as safety because it also had an interstate
commerce component. Thus, Congress has the power to foster and protect
interstate commerce, and to take all measures necessary and appropriate
to that end, although intrastate transactions may be thereby controlled.
9. Notes: The "current of commerce" notion has also been invoked as a
practical consideration to allow Congress to regulate portions of
interstate commerce that appear to be solely intrastate. In Stafford v.
Wallace, the Supreme Court held that individual purchases by middlemen
of meat destined for the cities was a part of the "current of commerce."
The purchase by the middlemen was local to the state that they were in,
but they were simply a part of a greater flow of meat from the West to
the East. The many transactions, viewed as a whole, represented
interstate commerce on a major scale. If the middlemen were unregulated,
their actions could become an obstacle to free trade.
** Wickard v. Filburn, (1942)
2. Facts: Filburn was a farmer who grew wheat both for sale and for his
own use. Under the Agricultural Adjustment Act of 1938, Filburn was
fined for producing too much wheat for his own consumption.
3. Procedural Posture: Filburn sought enjoinder of the fine, and sued
the Secretary of Agriculture, Wickard. The lower court granted the
injunction on other grounds, and Wickard appealed.
4. Issue: Whether Congress has the power to regulate the production of
wheat for consumption by the farmer, apart from the sale of such wheat
5. Holding: Yes.
6. Pro Argument: The Congress does not have the power under the commerce
clause to regulate the production and consumption of wheat because these
activities are local in character and, at most, have an indirect effect
on interstate commerce.
7. Con Argument: The statute does not regulate production or consumption
of wheat, but only marketing; and even if it goes beyond marketing, it
is "necessary and proper" in this case.
8. Majority Reasoning: The court discarded the "direct-indirect"
approach of Gibbons v. Ogden for a more encompassing approach. Whether
an activity had a local is only one of the facts upon which a decision
should be based. The test should be based on whether the activity has a
"substantial economic effect" on interstate commerce. The consumption of
homegrown wheat causes extreme volatility in the national market because
it is so variable. Although the effect of one farmer may trivial, he is
part of a nationwide market, where the overall effect is not trivial.
Since this activity has a substantial economic effect on the interstate
wheat market, Congress has the power to regulate it.
** United States v. Darby, (1941)
2. Facts: Darby was a Georgia lumber manufacturer who hired labor at
less than the minimum wage prescribed in the Fair Labor Standards Act of
1938. He was indicted on violating this Act, which sought to regulate
the hours and wages of employees by prohibiting the sale of the product
in interstate commerce.
3. Procedural Posture: Darby challenged the indictment, and the lower
District Court quashed it, holding that it was unconstitutional because
it sought to regulate "local" manufacturing activities.
4. Issue: Whether Congress has the power to prohibit shipments of
product that are manufactured by employees who are paid less than a
prescribed minimum wage and required to work more than a prescribed
maximum number of hours.
5. Holding: Yes.
6. Pro Argument: The Congress only has the power to regulate prohibit
the shipment of products which are "bad" in themselves, such as toxic or
stolen articles. This prohibition is motivated by the regulation of
local wages, the control of which has been reserved to the states as
police power, and so is trampling on the states' rights.
7. Con Argument: In its power to regulate interstate commerce, Congress
has the implied power to exclude from commerce any articles which it
perceives to be injurious to the public health and welfare.
8. Majority Reasoning: The fact that the state has not regulated this
type of activity does not preclude the federal government from doing so;
its powers are not limited by the inaction of the state. The motive and
purpose behind a regulation are legislative concerns, and as long as the
power is not exercised beyond the contemplation of the constitution,
Congress is free to use the commerce power to implement public policy.
Hammer v. Dagenhart, which limited Congress' power to regulate only
those objects which were themselves harmful, is overruled. The test for
whether Congress can regulate an activity under the commerce power is
whether the activity has a "substantial effect on the commerce or the
exercise of the Congressional power over it." Congress may choose the
means necessary to achieve this end, even if it necessarily involves the
control of intrastate actions.
** Perez v. United States, (1971)
2. Facts: Perez was a loan shark. He was convicted under Title II of the
Consumer Credit Protection Act which was a federal law prohibiting
extortionate loan activities. The Act was passed by Congress pursuant to
findings that 1) organized crime is interstate in nature, and 2) a
substantial part of the income for organized crime is generated by
extortionate loan activities, thus, loan sharking is an instrumentality
of interstate commerce, even where individual transactions are purely
intrastate in nature.
3. Procedural Posture: Perez challenged his conviction on the grounds
that the Act was unconstitutional as being an impermissible exercise of
the commerce power by Congress.
4. Issue: Whether Title II of the Consumer Credit Protection Act, as
construed and applied to Perez, is a permissible exercise by Congress of
its powers under the Commerce Clause.
5. Holding: Yes.
6. Pro Argument: The Act is unconstitutional because it exceeds the
limits of the commerce power contemplated by the framers of the
Constitution. It infringes on the States' police power of their own
intrastate crime activities. Loan sharking is a local activity, not an
7. Con Argument: Since loan sharking is a substantial revenue generator
for organized crime, and organized crime is a nationwide problem that
uses interstate commerce as a conduit to conduct illegal transactions,
loan sharking affects interstate commerce and is thus able to be
regulated by Congress. The States are not able to deal with this problem
individually, the federal government needs to provide tools to deal with
the problem on a nation-wide level.
8. Majority Reasoning: The majority accepted Congress' findings on the
relationship between loan sharking and organized crime, and the effect
of organized crime on interstate commerce. They stated that the commerce
clause reaches protection of the instrumentalities of interstate
commerce, which included the policing of organized crime. Citing to
Darby, the court reasoned that it was permissible for Congress to
regulate a class of activities without proof that the particular
intrastate activity that was thereby controlled had an effect on
commerce. It was proper to consider the "total incidence" that the class
of activities had on commerce, rather than to try to carve out
exceptions for individual occurrences of the activity that were not
proven to be directly related to commerce. Even if individual
transactions of loan sharking were completely local in nature, as a
whole, they comprised a threat to interstate commerce because of their
relation to the interstate activities of organized crime.
9. Dissent Reasoning: Conviction for loan sharking under the federal law
should require proof that the individual was actually involved in
interstate activities. Otherwise, a purely local problem would be
regulated by the federal government, contrary to the States' police
power. Loan sharking is only a national problem in the sense that all
crime is a national problem. There is no distinguishing factor about
loan-sharking that lends itself to being a threat to interstate commerce
** United States v. Five Gambling Devices, (1953)
2. Facts: This case involved three companion proceedings arising from a
statute that prohibited the shipment of gambling machines in interstate
commerce. The statute required the registration and reporting of all
gambling machines sold, by all manufacturers and dealers in gambling
devices, not just those that had some nexus to interstate commerce.
3. Procedural Posture: The lower courts found the statutory
4. Issue: Whether the statute requiring the registration of all gambling
devices by all manufacturers and dealers was a permissible exercise of
the commerce power when it was interpreted to apply to purely intrastate
5. Holding: No.
6. Pro Argument: The statute should be applied according to its literal
terms without any showing that any individual activity be shown to have
an actual effect on interstate commerce. To have an effective regulation
of those gambling machine related activities that do have a relationship
to interstate commerce, it is necessary to require reporting of all
7. Con Argument: The statute is unconstitutional because it regulates
purely intrastate transactions that can not be shown to have any nexus
to interstate commerce.
8. Majority Reasoning: No precedent of the Court has upheld the power of
Congress to enact legislation which penalizes failure to report
information concerning acts that have not been shown to be related to
interstate commerce. Although the Darby "bootstrap" theory, which allows
a class of activities to be regulated even though it is over-inclusive,
is applicable under its own facts, the present case is distinguishable
on its facts. However, the traditional limitations of the federal system
do not go against the lower courts findings. There is no unmistakable
intent of Congress to apply the act to the police powers normally
reserved for the states.
** United States v. Bass, (1971)
2. Facts: A man was convicted of possession of a firearm in violation of
a provision of the Omnibus Crime Control and Safe Streets Act of 1968
which applied to any felon "who receives, possesses, or transports in
interstate commerce or affecting commerce, any firearm."
3. Procedural Posture: There had been no showing that the defendant's
firearms were commerce-related, but the lower court convicted anyway.
4. Issue: Whether the Omnibus Crime Control and Safe Streets Act of 1968
applied to merely the possession or receiving of firearms without a
nexus to interstate commerce demonstrated.
5. Holding: No.
6. Pro Argument: The commerce limitations in the law applied only to
"transports" and that possession and receipt were punishable without a
showing that there was a nexus with commerce.
7. Con Argument: The interpretation by the government is
unconstitutional because it reaches into purely intrastate activities
which have no relations to interstate commerce.
8. Majority Reasoning: Since the statute was criminal in nature, such a
broad reading as the government asserted would be too intrusive to the
police powers of the states. In the absence of clear direction of
Congressional intent to do so, the court would not construe the statute
so broadly as to not require a showing of nexus with commerce.
9. Notes: In Scarborough v. United States, the government came prepared
to show that the firearm in question had once moved in interstate
commerce, but did not provide a strong link that the person convicted
was involved in any way in interstate commerce or got the firearms after
his felony conviction. Nevertheless, the Supreme Court found that the
showing was "sufficient to satisfy the statutorily required nexus
between the possession of the firearms by a convicted felon and
** Heart of Atlanta Motel v. United States, (1964)
2. Facts: The hotel had 216 rooms and was located within ready access to
two interstate highways. It advertised in national media, and was a
center for conventions of out of state guests. The hotel refused to rent
rooms to African Americans.
3. Procedural Posture: The hotel brought a declaratory judgment action
attacking the constitutionality of Title II of the Civil Rights Act of
1964, which prohibited discrimination on the basis of race in places of
"public accommodation," and which grounded its authority primarily in
the commerce power. The District Court upheld the Act, and the Hotel
4. Issue: Whether application of Title II of the Civil Rights Act of
1964 to a motel which serves interstate customers is within the
constitutional power of Congress under the Commerce Clause.
5. Holding: Yes. "The determinative test of the exercise of power by the
Congress under the Commerce Clause is simply whether the activity sought
to be regulated is 'commerce which concerns more States than one' and
has a real and substantial relation to the national interest."
6. Pro Argument: Congress did not have the power to legislate against
moral wrongs under the guise of the Commerce Power. Even if they did,
the operation of a motel is purely local in character, and thus does not
affect interstate commerce.
7. Con Argument: Discrimination by hotels has a significant effect on
interstate commerce by deterring African Americans to travel.
8. Majority Reasoning: There is ample evidence in the Congressional
record that discrimination by places of public accommodation impair
African-Americans' ability to travel, thus affecting interstate
commerce. Thus, the Act passed the test of "commerce which concerns more
States than one," and discrimination had a substantial relation to the
national interest. The court then listed several examples of factual
scenarios where the Congress had legitimately exercised the commerce
power to police activities which were both immoral and had an adverse
affect on interstate commerce. "That Congress was legislating against
moral wrongs...rendered its enactments no less valid." Furthermore, "if
it is interstate commerce that feels the pinch, it does not matter how
local the operation that applies the squeeze." Thus, the commerce power
encompasses the regulation of local activities that have an affect on
** Katzenbach v. McClung, (1964)
2. Facts: Ollie's BBQ was a family-owned restaurant in Birmingham that
seated 220 customers and was located on a state highway near an
interstate highway. The restaurant received about $70,000 of food,
mostly meat, in interstate commerce annually. However, it refused to
serve African Americans inside its dining facility. They could only
3. Procedural Posture: The restaurant brought this action [a sister
action to Heart of Atlanta] to challenge the constitutionality of Title
II of the Civil Rights Act as it related to restaurants. The District
Court found that the Act provided no basis for relating the operations
of a local restaurant to interstate commerce, and thus issued an
injunction restraining the Act from being enforced against the
restaurant, concluding that it would lose substantial business.
4. Issue: Whether such part of Title II of the Civil Rights Act that
prohibits discrimination on the basis of race in restaurants which serve
interstate travelers or which serve food a substantial portion of which
has moved in interstate commerce is constitutional.
5. Holding: Yes.
6. Pro Argument: There is no basis for believing that racial
discrimination in local restaurants has any affect on interstate
commerce. Congress has merely created a conclusive presumption that it
does, without making formal findings in the record that support such an
assertion. The government should be required to show the connection to
interstate commerce on a case-by-case basis. The volume of food served
at Ollie's BBQ prohibits such a finding.
7. Con Argument: Racial discrimination in restaurants has an affect on
interstate commerce because it deters African Americans from traveling,
thus reducing business overall.
8. Majority Reasoning: Although there were no formal findings made by
Congress, the testimony contained ample evidence to support a finding
that racial discrimination in restaurants had an adverse affect on
interstate commerce. For instance, by deterring travel by African
Americans, the whole business climate suffers for lack of customers.
Also, discrimination puts an artificial restriction on the free flow of
goods. The wide unrest over the discrimination has a depressant effect
on local businesses making new investment and expansion unfavorable in
such a depressed business climate. Following Wickard, local activities
can be said to have a substantial effect on interstate commerce when
viewed in "aggregation." Racial discrimination is not merely a local
problem. As an "aggregation" it is a nationwide problem. Thus, it
exercises a substantial economic effect on interstate commerce. The lack
of formal findings to that effect were not fatal to the Act because
there existed enough evidence to conclude that Congress had a rational
basis for "finding a chosen regulatory scheme necessary to the
protection of commerce." The Court needed to do no further examination
to second-guess Congress' judgment in the light of such evidence.
9. Concurrence Reasoning: Douglas was reluctant to base his opinion
entirely on the Commerce Clause because he felt that the human rights
issue at stake was more consequential than the commerce clause could
justify. Thus, he would also support the reasoning under the equal
protection clause of the fourteenth amendment because it seemed a much
more appropriate grounds for anti-discrimination protection.
10. Notes: Five years later in Daniel v. Paul, Justice Black was the
sole dissenter against application of Title II of the Civil Rights Act
to the Lake Nixon Club in Arkansas. The club had a snack bar that
refused to serve African Americans, and a substantial portion of the
food served at the snack bar had traveled in interstate commerce.
However, Black felt that the Act would be justifiable if based on the
Fourteenth Amendment, but he did not feel that there was an adequate
relationship between this snack bar and interstate commerce. He was
afraid that this finding would stretch the commerce power to regulate
any "remote country place of recreation in every nook and cranny of
every precinct and county" everywhere.
** Garcia v. San Antonio Metro. Transit Auth., (1985)
2. Facts: Garcia was a bus driver who worked overtime hours. Under the
FLSA, the Con, SAMTA, was required to pay a certain wage and comply with
certain overtime standards. However, four months after the Supreme
Court's ruling in National League of Cities, that the FLSA did not apply
to state government agencies "in areas of traditional government
functions," SAMTA notified its employees that the decision relieved it
of its overtime obligations under the FLSA because a municipal public
mass-transit system was traditionally a local government function, and
therefore immune from FLSA.
3. Procedural Posture: Garcia sued for his overtime pay under the FLSA.
The District Court found that a municipal operation of a mass transit
system was a traditional government function, and thus under National
League of Cities, is exempt from the FLSA wage and overtime obligations.
4. Issue: Whether Congress has the power, under the Commerce Clause, to
regulate activities and functions that are "traditionally" an "integral"
part of state government operations.
5. Holding: Yes. The fundamental limitation that the constitutional
scheme imposes on Congress' power under the commerce clause to protect
"states as states" from intrusion by federal regulation is a procedural
one to be found in the political process - states' and citizens'
participation in federal governmental action.
6. Majority Reasoning: The test of National League of Cities [also the
third prong of the test in Hodel], that Congress may not interfere with
"traditional" state government functions, is unworkable. There is no
meaningful way to determine what is a "traditional" or "integral" part
of a state government's function, and what is not. Such an approach has
led to artificial results since its enactment. History is not a viable
grounds for a determination because this prevents meaningful change when
necessary, as well as being fairly arbitrary. Furthermore, it requires
the unelected judiciary to review legislative decisions based on which
policies it likes and dislikes. [This argument goes contrary to
Marbury.] If Congress has a particular power, it does not matter whether
it interferes with the laws of the states. To find limits on the
commerce power, the constitution itself must be examined. Since there
are no express limits, the constitution suggests that the structure of
the federal government itself is the process by which it is regulated;
i.e. by state representatives to the federal government. The states'
interests are best protected by their own representation in the federal
government. Since the FLSA is a lesser burden on the states than many
other Acts, it is evidence of the political pressures on the federal
government to protect states' rights. Thus, National League of Cities is
7. Dissent Reasoning: [Powell] reasoned that the majority rendered the
10th amendment [reservation of power to the states] meaningless. The
"balancing test" of National League of Cities was best designed to
protect the states while allowing the Congress proper power. The
majority also failed to explain how the states' role in the electoral
process protects them in their capacity as states themselves. The fact
that Congress does not generally exceed its constitutional limits to
reach state activities does not make judicial review any less necessary
on those occasions that it does. The States' rights are a matter of
congressional law, not legislative grace. Congress has passed
increasingly more legislation of this type, while at the same time
losing ground with its local constituents. This poses a danger for
future stability of the federal government because it undermines the
constitutional balance of power between the federal government and the
states. Furthermore, it is clerks and aids who normally draft
legislation, not the Senators themselves. Thus, the drafters are even
one more step removed from the constituents who best know how to govern
their local agencies. Since the FLSA is so economically intrusive, it
clearly violates the "balance" established by National League of Cities.
8. Dissent Reasoning: [O'Connor] felt that the majority had backed down
from the fight for states' rights just when the states needed help from
the Supreme Court. There is now a risk that Congress will gradually
erase the diffusion of power between state and nation on which the
Framers relied. Such a fear is not unwarranted given the amount of
similar legislative activity in the last 30 years. The proper test
should be weighing the states' rights as a "relevant consideration" in
determining the constitutionality of uses of the commerce power.
** United States v. Lopez, (1995)
2. Facts: Lopez was a high school senior in San Antonio who was caught
with a .38 caliber handgun and five bullets on school grounds.
3. Procedural Posture: Lopez was charged with violation of 922(q) of
the Gun-Free School Zones Act of 1990, which made it a federal offense
"for any individual knowingly to possess a firearm at a...school zone."
The District Court convicted him on a bench trial and sentenced him to
six months' imprisonment. The Court of Appeal for the 5th district
reversed the conviction on the grounds that the law was unconstitutional
as being beyond the power of Congress to legislate control over local
public schools, and the Supreme Court granted cert.
4. Issue: Whether 922(q) of the Gun-Free School Zones Act is
unconstitutional as being beyond the power of Congress to legislate
control over local public schools.
5. Holding: Yes.
6. Pro Argument: 922(q) is valid because possession of a firearm in a
school zone "substantially affects" [see Shreveport] interstate commerce
because it results in violent crime which affects the economy in two
ways: first, it results in increased costs to the taxpayers, second, it
deters people from traveling to areas that are perceived to be unsafe.
Also, the presence of guns in school is a substantial threat to the
learning environment, which results in a less educated population, and
therefore a less productive economy.
7. Con Argument: The Gun-Free School Zones Act is unconstitutional as
being beyond the power of Congress to legislate control over local
8. Majority Reasoning: 922(q) is a criminal statute that has no
observable relationship to "commerce" or any sort of economic
enterprise, regardless of how broadly those terms are defined. Deterring
the presence of guns on school grounds is not part of a larger
regulatory scheme to control commerce that would otherwise be undermined
if not viewed in the "aggregate." Furthermore, it contains no test by
which the firearm in question could be rationally linked to interstate
commerce. Although the lack of formal Congressional findings to this
extent are not fatal, their absence fails to save the statute from the
otherwise plain observation that it is not commerce-related. To accept
the government's position that it guns at schools do have a substantial
effect on commerce because they adversely affect the economy would be to
give virtually unlimited power to Congress to regulate any activity that
has a social cost. Additionally, such a position would allow Congress to
provide federally mandated school curriculums, and regulate each and
every aspect of local schools. This is too broad a reading of the
9. Concurrence Reasoning: [Kennedy, O'Connor] Such a broad reading of
the commerce power would violate the theory of federalism in which the
states perform their role as laboratories for the experimentation with
various means of local regulation.
10. Concurrence Reasoning: [Thomas] In future cases, the Court should
take the opportunity to fashion jurisprudence that more accurately
reflects the intent of the Framers with respect to the commerce power.
The "substantial effect" test is far too broad in light of the
historical evidence of the Framers' intent.
11. Dissent Reasoning: [Souter] The Court was wrong to second-guess the
rational basis for Congress' enactment of this Act based on the commerce
clause. As a matter of judicial restraint, the Court should defer
judgment to the legislature when it appears that there is a rational
basis for the Act.
12. Dissent Reasoning: [Breyer] The economic reality is that the quality
of education has a "substantial effect" on interstate commerce because
it affects the individual citizen's ability to compete in the global
** Gregory v. Ashcroft, (1991)
2. Facts: Missouri has a state constitutional provision that provides
for the mandatory requirement of judges when they reach age 70. The Age
Discrimination in Employment Act prohibits an employer from discharging
an individual over the age of 40 for reasons of age. However, the Act
expressly excludes from the definition of "employee" any "person elected
to public office" or any "appointee on the policymaking level." Judges
in Missouri are first appointed by the Governor and then re-elected.
3. Procedural Posture: Unknown.
4. Issue: Whether the Age Discrimination in Employment Act may be
applied to the mandatory retirement of Missouri judges.
5. Holding: No.
6. Pro Argument: Missouri argued that the judges fell into the exception
of the Act as being either elected or policymaking persons, and
7. Majority Reasoning: Because of the delicate balance of federal vs.
state power, and especially in light of the serious intrusion it would
be into state power if the federal government were able to regulate the
ages of their public officials, O'Connor held that Congress would be
taken to have encroached on state power in this context only if there
was a "plain statement" to that effect. This was necessary to preserve
the Framer's "dual sovereignty" notion of the power of the states being
commensurate with the power of the federal government. Especially since
the Court, in Garcia, had left protection of states' rights primarily to
the political process of elections, we must be absolutely certain that
Congress intended such an exercise so that the Commerce Power is kept in
check. Since the ADEA's exclusion of most public officials is ambiguous,
the Court would not interpret Congressional intent as being plain enough
to effect such a broad exercise of power.
8. Concurrence Reasoning: The majority's "plain statement" rule is
"unwise", "infeasible", and "unnecessary to the proper resolution of
this case." It deviates from the standard set forth in Garcia, and there
is no reason to think that the rationale of Garcia would be inapplicable
here. However, there is no reason to consider this question, because as
a matter of simple statutory construction, Missouri judges are exempted
as "elected" or "policymaking" officials.
** New York v. United States, (1992)
2. Facts: In 1985, Congress passed the Low-Level Radioactive Waste
Policy Amendments Act of 1985, which was intended to solve a national
problem of the disposal of low-level radioactive waste by providing a
procedure for states to either group together into regional compacts,
each dumping their waste into a single site in one of the compact
states, or find their own waste disposal area. The Act had three
provisions: 1) monetary incentives which allowed site states to charge
increasingly higher surcharges to non-pact states for disposal of their
waste, part of which surcharges would be refunded to the states by the
Secretary of Energy if they complied with a timeline for finding their
own disposal sites, 2) access incentives which allowed site states to
deny access to non-pact states after a few years, and 3) a "take-title"
provision which required the delinquent states to take possession and
title of the radioactive waste and assume liability for it if they
remained delinquent to the end. New York decided to dispose of its own
waste, and did not join a regional pact. However, the state had problems
locating the site within its borders because the local citizens did not
3. Procedural Posture: The state of New York brought this action to seek
a declaratory judgment that the Act was inconsistent with the Tenth
Amendment and the Guarantee Clause of Article IV.
4. Issue: Whether Congress may direct or otherwise compel a State to
regulate a particular private field in a particular way.
5. Holding: No.
6. Pro Argument: The 10th amendment forbids Congress from directly
regulating the states to compel them to carry out federal regulation in
this private field. Although they unquestionably have the power under
the Commerce Clause to regulate the generators of the waste, they do not
have the power to compel the states to directly regulate the waste
generators in a particular manner. The Act "commandeers the legislative
processes of the states." Furthermore, the second part of the act which
provides for monetary incentives is beyond Congress' spending power.
Lastly, the Act violates the Guarantee Clause because it attempts to
undermine the states' own republican form of government.
7. Con Argument: The Constitution's prohibition of convressional
directives to state governments can be overcome where the federal
interest is sufficiently important to justify state submission. Also,
the Constitution does, in some circumstances, permit federal directives
to state governments. Lastly, the Constitution envisions a role for
Congress as an arbiter of state disputes.
8. Majority Reasoning: The Tenth Amendment is a truism that simply
directs the court to examine what are the internal limitations to the
powers granted to Congress in Article I. So the court must examine the
Commerce Power, the Spending Power, and the Supremacy Clause. The basic
premise is that under Hodel, Congress may not simply "commandeer" the
state governmental processes. Nothing in the Constitution implies that
Congress has the ability to require states to govern by federal
coercion. This premise is supported by looking at the Framer's intent
when they chose the structure that the Congress would exercise its power
directly over individuals rather than over states as intermediaries.
Although Congress can motivate or encourage states to regulate in a
certain way by making federal assistance conditional or by giving them
the choice between doing it themselves or having the federal government
do it for them by preemption, it can not directly compel. This enables
state governments to be directly responsive and accountable to the local
electorate. Where the federal government compels regulation, the state
officials take the brunt, while the federal officials remain insulated,
thus reducing accountability in the political process. Construing the
Act in a light most favorable to the United States, the "take title"
provision is still clearly beyond Congress' power because Congress
neither has the power to force states to take title to the waste
(thereby subsidizing the generators) nor does it have the power to
compel regulation. That there is a very strong federal interest in
controlling waste does not allow Congress to go beyond the Constitution.
Even if New York state itself agreed to the bargain, the state is
powerless to waive the Constitutional limits on Congressional power
because the Constitution is for the protection of individuals. The other
parts of the Act are Constitutional because neither monetary incentives
nor access denials can reasonably be said to deny a State a republican
form of government.
9. Concurrence/Dissent Reasoning: [White] reasoned that the majority had
taken the Act out of its historical context and its contractual setting.
The states, including New York, got together to reach their own
agreement on how the radioactive waste crisis should be handled. They
did not seek federal pre-emption, but rather federal sanction of their
pact under Article I, Section 10 which states that "no state shall,
without the consent of Congress,...enter into any agreement or Compact
with another State." Thus New York should be estopped from asserting the
unconstitutionality of a bargain that it had derived substantial benefit
** Bailey v. Drexel Furniture, (1922)
2. Facts: After the Court held that regulation of child labor was
unconstitutional if its basis was the Commerce Power (Hammer v.
Dagenhart), Congress passed the Child Labor Tax Law of 1919 which
imposed a federal excise tax of 10% of the annual net profits of any
employer who exceeded the age or working hours limitations provided. It
was almost identical to the Act declared unconstitutional in Hammer, but
it rested on the taxing power instead.
3. Procedural Posture: Drexel brought this action for refund in the
District Court after paying $6,000 under the tax, and won. The IRS
4. Issue: Whether Congress may impose a tax on industries as a means of
regulating child labor, under the pretext of the taxing power.
5. Holding: No.
6. Pro Argument: The Act is a regulation of the employment of child
labor internal to the states, which is an exclusively state function
under the 10th amendment.
7. Con Argument: The Act is a mere excise tax levied by the Congress
under its broad power of taxation under the Constitution. The court has
already gone so far un upholding taxing statutes that it is bound by
precedent to uphold this one as well.
8. Majority Reasoning: The Act, on its face, appears to be a penalty
enacted under the pretext of a tax. It provides a heavy burden for
departure from a detailed and specific course of conduct. It is imposed
without regard to the severity or proportion of the violation of the
child labor provisions. It also requires a mens rea in that the violator
knowingly depart from the standards. Thus, it clearly looks like a
penalty. To allow it merely because it has the magic word "tax" would
be to break down all constitutional limitations on Congress' power to
interfere with state activities, because then any subject of federal
concern could be regulated by the taxing power. Even though some taxes
have an incidental penalty-like action, this one is primarily a penalty.
This case is the same as Hammer. Also, the previous authority relied
upon by the government is distinguishable because it involved taxes that
were not enacted under a pretext.
** United States v. Kahriger, (1953)
2. Facts: The Revenue Act of 1951 contained a 10% occupational tax on
persons engaged in the business of accepting wagers (professional
interstate gamblers). It also required these persons to keep a list of
the names, and addresses of all employees for public inspection at any
time by any state county or municipal agency. In the discussions in the
Congressional record, there was evidence that one of the primary
purposes was to tax these professional gamblers out of existence.
3. Procedural Posture: The lower court found this provision beyond the
taxing power of the Congress.
4. Issue: Whether Congress has the power, under the taxing power, to
enact a tax on a particular profession if the tax also has a regulatory
effect which appears to infringe on the states' police power under the
5. Holding: Yes.
6. Pro Argument: The legislative history indicating a congressional
motive to suppress wagering indicates that this is a tax passed under a
pretext of revenue generation and thus is not a proper exercise of the
taxing power. The sole purpose of the law is to penalize gamblers. The
revenue generation pretext is evidenced by the small amount of revenue
actually generated. Furthermore, a the law requires the gamblers to
record and present upon demand the names and addresses of their
employees, which is clearly an attempt to regulate this occupation.
7. Majority Reasoning: A federal excise tax is not invalid merely
because it discourages or deters the activities taxed. Nor is it invalid
because the revenue generated is negligible. If a tax produces revenue,
and unless there are penalty provisions extraneous to any tax need, the
courts are without authority to limit the exercise of the taxing power.
This tax is not a penalty, therefore it is valid. The registration
requirement simply aids in the collection of the tax.
** United States v. Butler, (1936)
2. Facts: Butler was a processor of cotton. In 1933, the Congress passed
the Agricultural Adjustment Act as one of the New Deal measures intended
to raise agricultural prices by limiting farm production. In return for
limiting their production, the government would give the farmers a
subsidy that was raised by taxing the processing stage of the
3. Procedural Posture: Butler attacked the tax on the grounds that it
was an integral part of an unconstitutional program to control
4. Issue: Whether the Act was a valid exercise of the power to spend for
the general welfare.
5. Holding: No.
6. Con Argument: Congress has the right to tax and spend to "provide for
the general welfare." This phrase should be liberally construed to cover
anything conducive to the national welfare. The decision as to what is
conducive to the national welfare is the function of Congress alone,
unreviewable by the courts, and this Act was for the "general welfare."
Furthermore, it is not coercive, because it provides for voluntary
compliance through payment of benefits.
7. Majority Reasoning: Looking to the framer's intent, the Court
accepted Hamilton's view that Congress has a substantive power to tax
and to spend, limited only by the requirement that it shall be exercised
to provide for the general welfare of the United States. However, the
Court did not reach the determination of whether the Act was for the
general welfare, because it invades the rights reserved to the states.
The attempt by congress to regulate the production of agriculture is
unconstitutional, thus any laws passed as a means to this
unconstitutional end are enacted under a pretext. The taxing power can
not be used to interfere with the states' rights, so the spending power
should not either. The Act is coercive, because it does not provide the
farmers with a practical choice, since their non-compliance would result
in their financial ruin. Furthermore, the power of Congress to contract
with individuals is limited by whether its federal power reaches the
subject matter of the contract. In this case, the federal power does not
reach so far.
8. Dissent: The court should only be concerned with the power to enact
statutes, not their wisdom. The court here may be overstepping its
bounds by trying to pass judgment on the policy of the law, not its
consitutionality. The coercion argument is unconvincing because Congress
must be able to have the power to condition funding on proper use of the
funding, otherwise, its broad powers would be defeated.
** Steward Machine Co. v. Davis, (1937)
2. Facts: Title IX of the Social Security Act imposed a payroll tax on
employers, but granted a credit of up to 90% of the tax for
contributions to a state unemployment fund if such fund was certified by
the federal government as meeting the requirements of the Act. One of
the provisions of the Act required the states to immediately pay over
the funds to the federal government who would hold them in trust.
3. Procedural Posture: Steward sought a refund of the taxes they had
paid under this Act.
4. Issue: Whether Congress has the power to encourage the states to
accept federally approved unemployment programs by providing tax credits
to employers in that state if the programs are adopted.
5. Holding: yes.
6. Pro Argument: The aim of the law is to conscript the state
legilatures by the use of economic pressure. Thus, it is
unconstitutional as infringing upon the soveriegnty of the states.
7. Con Argument: The statute was designed to enable the states to
cooperate with the federal government in the solving of a national
problem. It does not coerce state governments because it is optional.
8. Majority Reasoning: Cardozo explained that the unemployment problem
was nationwide and was not relieved by the action (or inaction) of the
states. Thus, the action of the federal government was clearly for the
general welfare. Congress was capable of determining what was in the
best interest of the national welfare in this case. There was not
coercion, but merely motivation or temptation. To argue that coercion
was the same as economic motivation would be to "plunge the law into
endless diffifulties" because the distinction between what was coercion
and what was not would be impossible. Congress has the power to tax and
to condition the tax on the compliance of the states, as long as the
subject matter of the tax is related to the scope of national policy and
power. The Child Labor Law case is distinguishable because in that case,
the pretext was clearly visible. In this case, the tax credit would be
lawful on its own. It is not crippled by the fact that it is tied to
conditional performance by the states.
** Woods v. Miller Co., (1948)
2. Facts: The Housing and Rent Act of 1947 was passed under the
authority of the war power to regulate the rents of houses in post-WWII
America. As the soldiers came back from the war, they were met with a
housing shortage due to the reduction in residential construction. The
reduction was caused by allocation of building materials to military
3. Procedural Posture: The District Court held that the authority of
Congress to regulate rents by virtue of the war power ended with the
President's New-Year's Eve 1946 proclamation of peace. Also, Congress
did not state that they were acting under the war power when they passed
the Housing and Rent Act. The government appealed directly to the
4. Issue: Whether the Housing and Rent Act is a constitutional exercise
of the war power by Congress.
5. Holding: Yes.
6. Majority Reasoning: [Douglas] Citing to both Hamilton and Ruppert,
the court stated that the war power includes the power "to remedy the
evils which have arisen from its rise and progress" and continues for
the duration of that emergency. It does not end with the cessation of
hostilities. The Presidential proclamation recognized that the state of
war still existed, and the war effort was what contributed most heavily
to the present housing shortage. Thus, Congress had the power, even
after the cessation of hostilities, to regulate a shortage of housing
caused primarily by the war. The necessary and proper clause requires
that the war power be held over to treat the effects of war. Although
this holding, read broadly, would authorize the war power to used during
peace to regulate long-term effects of war and swallow up the Ninth and
Tenth amendments, we must assume that Congress will act responsibly and
take into account its constitutional limits when exercising the war
7. Concurrence Reasoning: [Jackson] felt that the result in this case
was clear, but was worried about the potential abuse of the war power
because it tended to bexercised during periods of hasty patriotism. The
war power cannot last as long as the effects and consequences of war
because many are permanent.
** Missouri v. Holland, (1920)
2. Facts: There were migratory birds in the northern United States that
transited between the U.S. and Canada. These birds had a beneficial
effect on the ecosystem by controlling the insect population, as well as
being a food supply. However, the birds were being over-hunted. The U.S.
and Great Britain entered into a treaty to protect the birds by
delineating hunting seasons. Pursuant to the treaty, the Migratory Bird
Treaty Act of 1918 was passed by Congress to give effect to the U.S.
side of the treaty.
3. Procedural Posture: The state of Missouri brought this action to
prevent an U.S. game warden from enforcing the Act on the grounds that
it violated the 10th amendment, arguing that Congress did not have to
power to pass the Act without the treaty, and thus should not be able to
pass the Act under the treaty because if the Act, standing alone, is in
violation of the 10th amendment, then the treaty is as well.
4. Issue: Whether Congress may properly pass an Act that regulates
hunting seasons for migratory birds if that Act regulates in
traditionally state-controlled areas.
5. Holding: Yes.
6. Majority Reasoning: Article II, 2 expressly delegates the power of
Congress to make treaties. Furthermore, Article IV declares that
treaties made under the authority of the United States are the "supreme
law of the land." If the treaty is valid, then it is clearly a necessary
and proper action to carry out the treaty-making power in this case. The
treaty-making power derives from the authority of the United States, as
an "organism" itself. It does not matter that Congress might not have
the power to pass the Act not in pursuance of a treaty, because Congress
does have the power to make treaties, and the Act is a necessary and
proper means to give effect to the treaty. Since the birds are
important, and they transit back and forth between the countries, the
United States has the power to make a treaty concerning their protection
and the treaty is valid. Since the treaty is valid, the Act is valid as
being necessary and proper to give effect to a valid treaty.
7. Notes: In the 1950's fear that any Constitutional limitation on
Congress' power could be overriden by the broad effect given by Holmes
to the treaty power in Holland led to a proposed constitutional
amendment called the "Bricker Amendment" which stated that "A provision
of a treaty which conflicts with this Constitution shall not be of any
force or effect," and "A treaty shall become effective as internal law
in the United States only through legislation which would be valid in
the absence of a treaty." However, in Reid v. Covert, these fears were
put to rest by Justice Black when he stated that no agreement can
"confer power on the Congress...which is free from the restraints of the
Constitution." and that Holland should be read as standing for the
proposition that the 10th amendment is no barrier to the United States'
power to make treaties because the states had delegated their rights as
to treaties to the federal government. Although there is no explicit
power in the Constitution for the Congress, independent of the treaty
power, to pass laws concerning foreign affairs, it is generally regarded
as implied by the fact that the United States' power to interact with
other countries must lay in some body, and it rests most appropriately
in Congress who has the power to make all other federal laws.
** Gibbons v. Ogden, Part II (1824)
2. Facts: See above Part I.
3. Procedural Posture: See above Part I.
4. Issue: Whether a state has the right to pass laws which affect
interstate commerce concurrently with that of Congress.
5. Holding: No.
6. Pro Argument: The states may severally exercise the same power to
regulate commerce within their respective jurisdictions as Congress has
with regard to interstate commerce. The states possessed this right
before the Constitution, and so it is reserved to them under the 10th
amendment to the extent that Congress has not acted on it.
7. Con Argument: The full power to regulate interstate commerce rests
with Congress. Thus, there is no residual power left to the states
because the grant of the whole power is inconsistent with the existence
of a residual power. The words "to regulate" require the grant of the
8. Majority Reasoning: Marshall reasoned that a Congressional power
could, in some cases, be concurrently exercised by the states. For
example, the power to tax was shared by both Congress and the states.
However, the power to regulate interstate commerce could not be shared
because it is by its very nature, unsharable. The states still have the
power to pass "police" laws, such as inspection and quarantine laws and
the like which act upon a good in preparation for interstate shipment,
but this is quite different from having the power to pass laws which
actually regulate interstate commerce. Although the devices by which the
power is exercised may appear to be the same between Congress and the
states, that does not mean that the power is the same. Even if a state
law encroaches upon a commerce area that the Congress has left
untouched, the action necessarily interferes with Congress' commerce
power if it regulates interstate commerce. Thus, it is immaterial
whether the state law was passed for local "police" purposes if it
conflicts with Congress' ability to exercise the commerce power. The law
here is then unconstitutional under the Supremacy Clause.
** Wilson v. Black Bird Creek Marsh Co., (1829)
2. Facts: The Con company was authorized by Delaware law to put a dam
across Black Bird creek, which was a navigable waterway flowing into the
Delaware river. crashed through the dam, and was successfully sued by
the Con company for damages.
3. Procedural Posture: Wilson brought this action to invalidate the
Delaware law as being in conflict with Congress' power under the
commerce clause to regulate interstate commerce, which was conducted on
4. Issue: Whether the Delaware law authorizing the Con to dam up the
navigable waterway was constitutional.
5. Holding: Yes.
6. Majority Reasoning: Marshall reasoned that the power to increase the
value of the surrounding property, as well as the health of the
inhabitants was well within the power of the states as long as it did
not conflict with the powers of the federal government. But since
Congress had passed no acts over this creek, the repugnancy of the
Delaware law must be measured wholly according to its repugnancy to the
dormant commerce power. In this case, the Delaware law can not be
considered as repugnant to the dormant commerce power.
** Cooley v. Board of Wardens of The Port of Philadelphia, (1851)
2. Facts: A Pennsylvania law of 1803 required ships entering or leaving
Philadelphia harbor to hire a local pilot. For failure to comply, Cooley
was fined. The proceeds from the fines went to a fund used to support
retired pilots and their dependents. Also, a 1789 congressional statute
stated that all previous piloting laws were expressly adopted, and the
states had the right to enact further similar laws until Congress saw
fit to enact laws in this area.
3. Procedural Posture: Cooley sued for the penalty, claiming that the
law was unconsitutional as being in conflict with the dormant Commerce
4. Issue: Whether the law was unconsitutional as being in conflict with
the dormant Commerce power.
5. Holding: No.
6. Majority Reasoning: The regulation of pilots is regulation of
navigation, and thus regulation of commerce. The 1789 Act, although it
expressly adopts existing piloting laws, can not grant any more power to
the states than does the constitution. Thus, if the commerce power is
exclusive in this area, the Act is inoperative and the local law is
unconstitutional. However, since the field of commerce is so diverse, it
requires laws of varying scope. Some facets of interstate commerce
require uniform national laws by their very nature. Others require
purely local legislation to meet diverse needs. Those that require
uniform national laws must be said to be exclusively regulated by
Congress, thus barring any state action in that area even when the
commerce power is dormant. However, in this case, there is a manifested
intent of congress to leave this area of commerce to local regulation.
Thus, this is an example where the commerce power can coexist between
the state and federal government if the federal government has not
actuall passed a law in that area. The determinative factor of whether a
state law is repugnant to the constitution in the face of the dormant
commerce power is the "subject" of the regulation, not the "purpose"
** South Carolina State Hwy. Dept. v. Barnwell Bros., (1938)
2. Facts: A 1933 South Carolina law prohibited trucks that were more
than 90 inches wide or had a gross weight of over 20,000 pounds from
travelling on South Carolina highways. About 85% to 90% of the nations
trucks exceeded these limits. The law was passed to preserve the
highways from damage.
3. Procedural Posture: The trial court found that substantial burdens
were put on interstate commerce by this law, and that it was an
unreasonable means of protecting the highways because it was tied to
gross weight instead of axle weight.
4. Issue: Whether the South Carolina law is unconstitutional as an
impermissible conflict with the dormant commerce power.
5. Holding: No.
6. Majority Reasoning: There are matters of local state concern, the
regulation of which unavoidably involves some regulation of interstate
commerce, but which, because of their local character and diversity, may
not be fully dealt with by congress. A state has an adequate local
interest in preserving its highways. Thus, it can pass local laws to
regulate the size of shipping on those highways. The fact that this
necessarily affects interstate commerce is immaterial because, so long
as the law does not discriminate, which this one does not, the power is
reserved to the states to regulate. It is not the judicial function to
determine whether the standard is the best approach or not, but only to
determine whether it is without a rational basis.
** Southern Pacific Co. v. Arizona, (1945)
2. Facts: The Arizona Train Limit Law of 1912 prohibited operating
railroad trains of more than a prescribed length. Reducing the length of
the trains was said to increase safety because of less "slack action"
which caused trains to behave uncontrollably. However, the length limit
required the train operators to run about 30% more trains, and cost
Southern Pacific about a million dollars/year in extra costs. About 95%
of all rail traffic in Arizona was interstate, and so it affected train
operations from Texas to California.
3. Procedural Posture: In 1940, Arizona sued Sourthern Pacific for the
statutory penalties for violating the law. The trial court found the law
to be an unconstitutional burden on interstate commerce, and further
found that it was not justified by local safety concerns because the
increase in safety by reducing the slack action was offset by the
decrease in safety of more trains. The state supreme court reversed,
concluding that a state police law, based on safety, could not be
overturned even though it had a substantial effect on interstate
4. Issue: Whether the total effect of the state law as a safety measure
in reducing accidents is too small to outweigh the national interest in
keeping interstate commerce free of burdens where a uniform national
regulation is needed.
5. Holding: Yes.
6. Majority Reasoning: The general rule is that the states do not have
the authority to substantially impede the free flow of commerce where
the need for national uniformity in laws demand that the regulation be
done at the national level. However, this case lies between the two
extremes of clearly needing national regulation, and clearly needing a
local police measure. Thus, it calls for a balancing of the state and
federal interests. The findings show that the increase in safety is
small if at all. Also, if the length of trains is to be regulated, it
must be done uniformly for efficiency. Since the Arizona Law is a
substantial burden on commerce where a need for uniformity exists, and
does not have an adequate police justification, it is unconstitutional.
7. Dissent Reasoning: [Black] thought that the balancing test was best
left to the legislature and not the judiciary. [Douglas] felt that the
state legislation was adequately tied to safety and thus entitled to a
presumption of validity.
** Dean Milk Co. v. Madison, (1951)
2. Fact: Madison, Wis., has a local ordinance which prohibits the sale
within Madison of any milk which has not been pastuerized within a 5
mile radius of the city of Madison. The three pastuerizing plants within
that radius are subject to rigourous local safety laws. Dean Milk
operates out of Chicago, and its facility meets Federal safety
3. Procedural Posture: Dean Milk brought this action to strike down the
Madison law after it was denied a license to sell milk there. The state
court rejected the commerce clause attack.
4. Issue: Whether the discrimination inherent in the Madison ordinance
can be justified in view of the character of the local interests and the
available methods of protecting them.
5. Holding: No.
6. Pro Argument: The regulation of milk in this manner is a substantial
burden upon interstate commerce because it plainly discriminates against
7. Con Argument: The ordinance is valid because it is a good-faith
attempt to police health of the milk supply. It is valid regardless of
its affect on interstate commerce, because the states have the power to
enact local police laws that are not in conflict with existing federal
8. Majority Reasoning: The statute clearly is a barrier to interstate
commerce. It has a discriminatory effect, even if it is not purposefully
discriminatory. If it were held valid simply because it were related to
health, then the Commerce Clause would be powerless because a state
could enact a burdensome and protective law on the pretext of health.
Since there are alternative methods for assuring the same degree of
health protection, the local law's interest in health does not outweigh
the national interests in non-discriminatory interstate commerce
practices. It would be just as effective for the local ordinance to
require higher standards without requiring local processing. A model
federal provision existed that would adequately safeguard the public
** CTS Corp. v. Dynamics Corp. of Am., (1987)
2. Facts: Indiana passed a corporate takeover law which stated that
should any party acquire a controlling interest in the number of shares
he held, he could only acquire voting rights on those shares to the
extent approved by a majority vote of the prior disinterested
3. Procedural Posture: The lower court held that the law was
unconsitutional as being a hindrance to tender offers, and thus an
interstate commerce burden.
4. Issue: Whether the Indiana law is unconstitutional as being in
conflict with the dormant Commerce Clause.
5. Holding: No.
6. Con Argument: Tender offers should generally be favored because they
represent a shifting of property rights to their highest value use.
Also, the state of Indiana has no interest in protecting non-resident
7. Majority Reasoning: A state has the fundamental right ot pass laws
concerning the regulation of corporations it establishes. They are only
unconsitutional if they discriminate against interstate commerce. Since
this law has the same effect on interstate commerce as well as
intrastate commerce, meaning that all shareholders and tender offers are
treated the same regardless of locality, then it does not discriminate.
The state regulation of corporations necessarily has some effect on
interstate commerce, since the shares are traded internationally.
However, there is stability in knowing that the corporation is subject
to one set of regulations - that of its home state.
8. Concurrence Reasoning: [Scalia] stated that there was no
consitutional basis for any balancing test when determining whether a
local interest outweighs a federal interest. Whether the burden on
commerce imposed by a statute is excessive in relation to its benefit is
a question for the legislature, not the judiciary.
** United Building & Constr. Trades v. Camden, (1984)
2. Facts: The city of Camden N.J. passed a municipal ordinance requiring
that at least 40% of the employees of contractors and subcontractors
working on city construction projects be Camden residents.
3. Procedural Posture: challenged the constitutionality of that
ordinance under the Privileges and Immunities clause. The state supreme
court of New Jersey rejected the attack on the grounds that the
ordinance discriminates on the basis of municipal residency and not
state residency, and thus declined to broaden the interpretation of the
privileges and immunities clause beyond the literal language in the
4. Issue: Whether the Camden ordinance is constitutional under the
privileges and immunities clause.
5. Holding: No.
6. Con Argument: The clause does not apply to a municipal ordinance. By
its own language, it applies only to state laws which discriminate based
on state residency. This ordinance discriminates equally against state
residents and non-state residents as long as they are non-Camden
residents. Even if it does apply to municipal ordinances, in this case
the law is necessary to counteract grave social and economic ills, of
which the out-of-city employees are a primary cause. Because they "live
off of" Camden without residing in Camden, these out-of-city employees
promote "middle-class flight" from Camden, resulting in a depleted tax
7. Majority Reasoning: First, the privileges and immunities clause does
apply to strictly municipal ordinances because what would be
unconstitutional if done by the state can be no more readily
accomplished by the city acting under the authority of the state. Also,
a person who lives out of state will be just as discriminated against
regardless of whether the ordinance also discriminates against other
state residents. The out-of-state resident has no chance to remedy the
law by participating in the local political process. Determination of
validity must therefore proceed under the two-step process. First,
whether the ordinance burdens a "fundamental" privilege or immunity
protected by the clause, and second, whether there is a good balancing
reason for allowing it anyway. Although a Commerce Clause analysis can
distinguish between cities acting as regulators (conflict with the
dormant Commerce Clause) and cities acting as participants (no
conflict), the privileges and immunities clause imposes a direct
restraint on the local legislature without regard to whether they are
acting as a participant. Clearly, the opportunity to seek employment
with private employers, whether or not they work "for the city", is a
fundamental right protected by the clause. As to whether the law is
nontheless justified, it can only discriminate against out-of-city
residents who are shown to "constitute a peculiar source of the evil at
which the statute is aimed." Here, there are no findings as to whether
the out-of-city residents are an "evil" with regard to Camden's law,
thus the case must be remanded for trial and specific findings to that
8. Dissent Reasoning: The privileges and immunities clause has long been
interpreted as applying only to state laws that discriminate against
out-of-state residents. The majority cites no historical basis for
broadening its scope. Furthermore, the out-of-state resident's
interests are adequately protected by the voters who are not residents
of Camden, but still residents of New Jersey.
9. Notes: In Supreme Ct. of New Hampshire v. Piper (1985), the court
struck down a state law prohibiting non-state residents from being
admitted to the state bar under the privileges and immunities clause.
The court found that Piper's claim involved a "privilege" because the
practice of law is "important to the national economy." The court also
found that there was no substantial justification for the difference in
treatment between state residents and others. In Edwards v. California
(1941) the court struck down the anti-Okie law which forbade bringing
indigent persons into the state. The majority opinion relied entirely on
the commerce clause, but a concurrence by Douglas stated that the
privileges and immunities clause was a better rationale because the
right of mobility of persons is more fundamental than that of products.
** Pacific Gas & Elec. Co. v. State Energy Comm'n., (1983)
2. Facts: A California law imposed a moratorium on the certification of
nuclear energy plants until a state agency found that there existed a
demonstrated means for disposal of high-level radioactive waste
generated by the nuclear power plants. There was evidence in the State
legislative record that the law was passed for economical reasons, such
as regulating the price of electricity, because an increase in the
number of nuclear power plants without an increase in radioactive
disposal capacity could result in the shutdown of existing plants and
the subsequent instability of electricity prices.
3. Procedural Posture: P.G.&E. brought an action for declaratory
judgment against the law, claiming that it was preemted by the federal
Atomic Energy Act of 1954. The District Court granted relief, the Court
of Appeal reversed, and P.G.&E. appealed to the Supreme Court.
4. Issue: Whether the California statutory moratorium on the
certification of nuclear power plants is preemted by the Atomic Energy
Act of 1954.
5. Holding: No.
6. Pro Argument: 1. The state law is preempted because it regulates
construction of nuclear plants based on safety reasons. Since the AEA's
primary function is exclusive federal safety regulation, there is no
room here for the state to regulate. 2. The statute conflicts with
actual decisions made by Congress and the NRC. 3. The statute frustrates
the AEA's goal of the development of nuclear technology.
7. Con Argument: Although safety regulation of nuclear plants is
forbidden, a state may completely prohibit new construction until its
safety concerns are satisfied by the federal government.
8. Majority Reasoning: Historically, the federal government has taken
efforts to ensure that nuclear power is developed and operated safely,
while leaving police regulations of the economics of electricity
generated by nuclear energy to the states themselves. This is evidenced
by the AEA's own language when it states that nothing in it is to be
construed as affecting the authority of any local government to regulate
the "generation, sale or transmission of electric power produced through
the use of nuclear facilities." Thus, the federal government has
explicitly left this power to the states; it is not impliedly preempted
by the mere existence of the AEA. However, the federal goverment, by the
AEA, has exclusively retained the right to regulate nuclear safety, and
so the state has no power to regulate in that specific area. Since there
is legislative history evidence that the law was passed as primarily an
economic, and not a safety matter, the court accepted California's
representation that they were not attempting to regulate safety. Even
though the Congress and the NRC have recently passed legislation that it
is safe and permissible to continue to certify new power plants, the
state is in no way compelled to do so. Thus, compliance with both the
federal and state statutes are possible here, and so the statute is not
expressly preempted. Lastly, the even though the AEA's purpose was to
promote the safe development and use of nuclear energy, that was not to
be accomplished at all costs. So the statute is not impliedly preempted
as being an obstruction of a Congressional purpose.
9. Notes: In Rice v. Santa Fe Elevator Corp., (1947), Justice Douglas
stated that the test in whether a local law was preempted was the intent
of Congress. In areas that were traditionally state-regulated, any
action by Congress was presumed not to preempt unless it was the "clear
and manifest purpose of Congress." There were three ways to divine this
purpose: 1. If the federal scheme of regulation was so pervasive as to
infer that Congress left no room for state regulation, 2. Where the
federal interest is so dominant that it outweighs the state interests,
and 3. The state law produces a result inconsistent with the federal
objective. Note the similarity between this analysis of preemption by
actual legislation, and the Cooley "balancing" analysis with regard to
the dormant commerce clause. In Campbell v. Hussey (1961), Justice
Douglas' plurality opinion struck down a local Georgia statute requiring
that tobacco that was grown (locally) according to federal regulations
be marked with a white tag (tobacco grown out-of-state in Carolina was
to be marked with a blue tag). He rejected the argument that the Georgia
statute was constitutional because it merely "supplemented" the federal
regulations. In this case the question of preemption did not need actual
conflict between the federal and state law, because one could draw an
inference from the structure of the federal regulation scheme that there
was no room for state augmentation. [See point 1 in Rice, above.]
Compare this result with the commerce clause rejection under the
rationale of local discrimination in the Washington Apple case. However,
in Florida Lime & Avocado Growers, Inc. v. Paul, the court distinguished
Campbell by stating that there was neither an actual nor presumed
conflict based on the federal regulatory design.
** Barron v. Mayor & City Council of Baltimore, (1833)
2. Facts: Barron was a wharf owner. The city of Baltimore, in an effort
to construct some streets, diverted part of the flow of some streams
feeding the Baltimore harbor. This caused sandbars to form around
Barron's wharf, making it too shallow for most ships to do business
3. Procedural Posture: Barron sued the city for taking his property "for
public use, without just compensation" under the 5th Amendment. The
trial court awarded him damages, but the court of appeals reversed.
4. Issue: Whether the guarantee in the 5th Amendment that private
property shall not be taken "for public use, without just compensation"
is applicable to state governments as well as the federal government.
5. Holding: No.
6. Majority Reasoning: Marshall felt the answer was easy. The historical
context of the framing of the constitution implied that the general
guarantees in the Bill of Rights only applied to the federal government
and not state governments. The purpose of the constitution was to ordain
and establish a federal government, not state governments. Thus, any
limitations on that power should be construed as applying to the federal
government, since states have their own constitutions. The structure of
the constitution shows that there was a plain line drawn between the
powers and limitations of the federal and state governments, and so if
the framers meant for these limitations to apply to states, they could
have made such intent clear. The bill of rights itself was a guarantee
against the encroachment of federal government. That is where the fear
resided. There was no need for security against local governments, and
so none was asked for.
** Slaughter-House Cases, (1873)
2. Facts: A Louisiana law of 1869 created a state corporation for the
slaughtering of livestock. The corporation was given exclusive power to
slaughter livestock, and all other private slaughterhouses were required
to close. Independent butchers could use the corporations facilities for
a charge, but could not conduct independent operations.
3. Procedural Posture: The butchers not included in the monopoly claimed
that the law deprived them of their right to "exercise their trade" and
challenged it under the 13th and 14th amendments. The highest state
court sustained the law.
4. Issue: Whether the 13th and 14th amendments guarantee federal
protection of individual rights of all citizens of the United States
against discrimination by their own state governments.
5. Holding: No.
6. Majority Reasoning: The states have the proper police power to limit
slaughter house operations for the health and safety of their residents.
The meaning of the 13th and 14th amendments must be derived from the
historical context of the problems they were designed to remedy, namely
African slavery. The Congress, after the end of the Civil War, sought to
strenghten the freedom of the former slaves by passing these amendments.
The word "servitudes" in the 13th amendment refers to "personal
servitudes" not property rights, because of the qualifying word
"involuntary." The purpose of the 13th amendment was thus to etch
freedom for slaves into the constitution so that it later would not be
questioned or avoided. The 14th amendment was a further step needed to
protect former slaves from the "black codes." The 15th amendment must be
grouped in with the 13th and 14th, and it was specifically for black
suffrage. These three amendments were ratified to counteract the
specific evils of discrimination against former slaves. They did not
create any further guarantees of privileges that did not already exist.
Specifically, they only were meant to guarantee federal privileges, not
state priviliges, whatever they may be. The "priviliges and immunities"
clause did not create additional rights, it merely required states to
apply its laws equally to non-state residents as well as state
7. Dissent Reasoning: [Field] stated that the privileges and immunities
referred to in the 14th amendment included the right to pursue lawful
employment. The clause in article 4, section 2 did for the protection of
citizens of one state against discrimination by another state, what the
14th amendment does for the protection of every citizen against
discrimination by his own state against him. [Bradley] felt that since
the language of the 14th amendment was general in nature, and did not
claim to protect only blacks, that it was meant to secure fundamental
rights of any citizen against discrimination by his state.
** Palko v. Connecticut, (1937)
2. Facts: Palko was convicted of second-degree murder. The state of
Connecticut appealed his conviction, seeking a higher degree conviction.
This was made possible by the state's local statute that allowed the
state to appeal criminal convictions, as well as the defendant. The
second-degree murder conviction was set aside, and he was retried and
convicted of first degree murder.
3. Procedural Posture: Palko brought an action to declare the procedural
statute unconstitutional as a violation of his 5th amendment guarantee
against double jeopardy.
4. Issue: Whether the action of the state in this case amounted to
double jeopardy prohibited by the 5th amendment.
5. Holding: No.
6. Pro Argument: The retrial violated the 5th amendment, and whatever is
forbidded by the 5th amendment is also forbidden by the 14th. Moreover,
whatever would have been forbidden to the federal government in the bill
of rights is now forbidden to the states by operation of the 14th
7. Majority Reasoning: There is no such general rule that the 14th
amendment incorporates the bill of rights and applies all of its
provisions to the states. Certain rights, such as that of a grand jury
indictment and trial by jury are important, but have not been applied to
the states through the 14th amendment because they are not
"fundamental." The rights that are absorbed by the 14th amendment are
those which are indespensible to freedom and liberty, such as freedom of
thought and speech. In this particular case, the particular procedure
used by the state was not so harsh as to prevent the fair administration
of criminal justice. The state has a right to prosecute a case against a
criminal until it ends in a decision that is free from substantial legal
** Adamson v. California, (1947)
2. Facts: Adamson was convicted of murder. During the trial, the state
had commented to the jury on his failure to take the stand.
3. Procedural Posture: Adamson claimed that the conviction violated the
14th amendment because the state's comment amounted to a violation of
the 5th amendment's self-incrimination privilege in a federal
4. Issue: Whether a state's comment at a state criminal trial on the
failure of a defendant to take the stand at trial is a violation of the
defendant's 5th amendment privilege against self-incrimination.
5. Holding: No.
6. Pro Argument: The 14th amendment incorporates the 5th amendment's
privilege against self-incrimination and applies it to the states in the
same way that the 5th amendment applies directly to the federal
7. Majority Reasoning: Although the 14th amendment's due process clause
guarantees a right to a "fair trial" in a state criminal trial, there is
no ground under Palko to make the self-incrimination privilege one of
the "fundamental" rights that is incorporated in the 14th amendment and
applied to the states.
8. Dissent Reasoning: [Black] felt that the full incorporation of the
bill of rights into the 14th amendment was the "original purpose" of the
14th amendment and the intent of the amendment's framers. The history
demonstrates that both those in favor of and against the amendment
thought that it was powerful to forbid the states from depriving a
citizen of the protections afforded by the bill of rights. The process
of Twining to expand or contract the applicability of the bill of rights
through the 14th amendment as needed by "natural law" was more power
than the court was granted by the constitution. Also, the "selective
application" process of Palko was inconsistent with the historical
9. Concurrence Reasoning: [Frankfurter] argued that the 14th amendment's
due process clause has "independent potency" apart from the bill of
rights. It does not represent shorthand for the first 8 amendments.
However, in determining which clauses in the first eight amendments are
incorporated and which are not, the judicial interpretation of which are
"fundamental" is too subjective. The relevant question is whether the
ciminal proceedings deprived the accused of the due process of law.
** Duncan v. Louisiana, (1968)
2. Facts: Duncan was convicted of simple battery, which in Louisiana was
a misdemeanor punishable by 2 years imprisonment and a $300 fine.
3. Procedural Posture: Duncan sought trial by jury, but the Louisiana
constitution grants jury trials only in capital punishment or hard labor
cases, so the trial judge denied the request.
4. Issue: Whether the federal constitution guarantees the right to a
trial by jury under the 6th amendment, through the 14th amendment in a
state criminal trial where a sentence as long as 2 years may be imposed.
5. Holding: Yes. The 14th amendment guarantees a right of jury trial in
all criminal cases which, were they to be tried in a federal court,
would come within the 6th amendment's guarantee.
6. Pro Argument: The 14th amendment makes the jury trial guarantee of
the 6th amendment applicable to the states in cases where a sentence as
long as 2 years may be imposed.
7. Con Argument: The constitution imposes no duty on a state to
guarantee a trial by jury in a state criminal trial, regardless of the
severity of the punishment available. If the trial by jury is guaranteed
in state criminal cases, it will cast doubt on the integrity of every
trial conducted without a jury. Also, if due process is deemed to
include trial by jury, then all past interpretations of the 6th
amendment in the federal courts (such as a 12-man jury) would then
become applicable to states, infringing on their ability to experiment.
8. Majority Reasoning: The test for whether a bill of rights right is
incorporated to the states by the 14th amendment is whether that right
is a "fundamental" right. Although there were prior cases stating in
dicta that a right to a trial by jury was not fundamental to a fair
trial, those cases are rejected as being wrong. A right to jury trial is
granted to criminal defendants in order to prevent oppression by the
Government. Although there are other countries that have fair criminal
justice systems, but use no juries, ours is not one of them. The
supporting framework of our criminal justice system relies upon juries
for fairness. It is true that there are some criminal cases that may be
tried without a jury, however, this is not one of them.
9. Concurrence Reasoning: [Black] expressed that he is glad that
selective incorporation has worked since Adamson to incorporate most of
the Bill of Rights guarantees. He goes on to restate his arguments in
support of total incorporation. Namely that the "privileges and
immunities" clause of the 14th amendment serves to totally incorporate
the Bill of Rights because "what more precious privilege can there be
that the privilege to claim the protections of our great Bill of
Rights." He criticizes Harlan's dissent as being too subjective a
definition of due process.
10. Dissent Reasoning: [Harlan] stated that the due process clause of
the 14th amendment requires that state procedures be "fundamentally
fair" in all respects, but it does not require jury trials in criminal
cases. The historical evidence demonstrates that the framers of the 14th
amendment did not think that they were "incorporating" the bill of
rights. The proper analysis should be a "gradual process of judicial
inclusion and exclusion" to ascertain those "immutable principles of
free government." It is improper for the majority to simply incorporate
the jury trial clause "jot-for-jot" with all of its associated baggage
of federal judicial interpretation. Each case must be analyzed to see
whether it was a fair one.
11. Notes: In Benton v. Maryland, the court held that the "double
jeopardy" clause was a "fundamental" ideal and is applicable to the
states. Since then, as a result of selective incorporation, almost all
criminal process guarantees are applicable to the states. In Wolf v.
Colorado the court incorporated only the "core" of the 4th amendment,
but not the case law interpreting it in federal courts. However, later
in Mapp v. Ohio, the court changed its mind, and incorporation
thereafter meant not only incorporating the "core" of the bill of rights
guarantee, but applying every detail of the contours of the guarantee as
delineated in judicial interpretations (the baggage). In Williams v.
Florida, the court held that a 12 man jury was not necessary, because
the function of the jury was fairness, and less than 12 men could still
be fair. In Apodaca v. Oregon, the court stated that the verdict did not
have to be unanimous, for the same reasons. Lastly, in Burch v.
Louisiana, the court stated that a 6 man non-unanimous jury was
unconsitutional, thus putting a limit on the relaxations of Williams and
** Calder v. Bull, (1798)
2. Facts: There was a dispute over a will. A probate court decree had
refused to approve a will. The persons who were the beneficiaries of
that will had the judgment set aside and a new hearing was granted, at
which the will was approved. There was a Connecticut law that allowed
the probate court to be set aside.
3. Procedural Posture: The persons who would have inherited the property
if the will was void brought an action to declare the law setting aside
their initial favorable judgment as violating the ex-post facto clause.
4. Issue: Whether the Connecticut law was valid.
5. Holding: Yes.
6. Reasoning: [Chase] reasoned that there were fundamental liberty
reasons why the law was sound. The purposes for which the constitution
was written was to give effect to a "social compact" wherein the
government was established to protect the natural and preexisting rights
of the citizens. The nature of these rights determines the limits of the
legislative power to infrnge on these rights. The government can not
have the power to enact leglislation that violates the natural laws of
civilized society that it was established to protect, even if such
natural right is not explicitly mentioned in the constitution. An
example is this case, the government can not violate the right of an
antecedent lawful private contract or the right of private property.
7. Dissent Reasoning: [Iredell] stated that the citizens had framed
their constitution to define the precise boundaries of the leglislative
power. Thus, if the legislature violates this power, its act is
certainly void. However, if the legislature passes a law within its
consitutional boundaries, the judiciary does not have the power to use
subjective determinations of what is "contrary to natural law" to strike
** Lochner v. New York, (1905)
2. Facts: Lochner was convicted under a New York law prohibiting bakery
employees from working more than 10 hours per day or 20 hours per week.
3. Procedural Posture: Lochner borught this action to attack the New
York bakery labor law.
4. Issue: Whether the New York law was a constitutional regulation of
health and safety of a workplace under state police power.
5. Holding: No.
6. Con Arguments: The state has an interest in the health and safety of
both the bakery workers as well as the quality of the bread that they
make. Thus, these laws were passed under a valid exercise of the state's
7. Majority Reasoning: The statute necessarily employs with the right of
contract between the employer and employee. Thus, the power of the state
to police the "liberty" of the individual to contract, which is
protected by the 14th amendment (See Allgeyer), must be balanced against
the state's interest. There is a limit on the police power of the
states. Thus, the question is whether this law is a reasonable exercise
of the police power or an arbitrary interference with the right of
personal liberty to contract as he sees fit. There is no reasonable
right to interfere with the liberty to contract by determining the hours
of a baker. This law does not involve safety of the baker, who in
contrast to a miner is as a class intelligent, is not threatened by his
power to negotiate hours of employment. The state's justification for
this law under health and safety is a pretext because the public
interest is not sufficiently affected by this act. There is no
demonstrable causal link between labor hours of a baker and the quality
of his product or his own health.
8. Dissent Reasoning: [Harlan] felt that the people of New York had
decided that the health of an average man is endangered if he works more
than 60 hours per week. Whether or not this is wise is not a question
for the court to inquire. The only question for the court is whether the
means devised by the state are germane to an end which may be lawfully
accomplished and have a real or substantial relation to the protection
of health of bakers. Common experience tells us that there is a logical
relationship. There is abundant evidence that the workplace of a baker
is hazardous to his health. Clearly, this is not a plain invasion of
rights secured by "fundamental law."
9. Notes: Lochner is criticized as being an overly broad interpreteation
of the word "liberty" in the 14th amendment. At common law, liberty
meant freedom from physical restraint, and it did not include "freedom
of contract" as held in Lochner. Also, Lochner seemed to read the terms
"property" and "due process" very broadly to cover contractual rights.
** Pennsylvania Coal Co. v. Mahon, (1922)
2. Facts: The coal company deeded the surface land above a mine to
Mahon's predecessors in title. The deed expressly reserves the right to
remove all of the coal udner the land, and puts the risk of loss of the
surface property on the grantee. However, a local statute forbids the
mining of coal in such a way as to harm a structure used as a dwelling.
3. Procedural Posture: Mahon brings an action in equity to enjoin the
coal company from mining under his house in such a way as to weaken its
4. Issue: Whether the local statute is a valid exercise of the state's
police power, or is an unconstitutional taking under the 5th amendment
as incorporated through the 14th amendment and applied to the states.
5. Holding: Unconstitutional taking.
6. Majority Reasoning: The question of whether a regulation is a valid
exercise of the police power or an unconstitutional taking depends on
the particular facts. The property being protected here is private
property belonging to a single citizen, in which there is no public
nuisance if it is destroyed. The law is not justified as a protection of
personal safety. The contract itself provided notice of the risks, and
the grantee still contracted. Since coal rights are worthless if the
coal can not be mined, preventing their mining is a taking because it is
tantamount to destroying it. If the police power of the states is
allowed to abridge the contract rights of parties, it will continue
until private property disappears completely. In general, while property
may be regulated to a certain extent, if regulation goes too far, it
will be recognized as a taking. The loss should not fall on the coal
company who provided for this very risk contractually. If the state
wants more protection for its citizens, it can pay for it.
7. Dissent Reasoning: A restriction imposed to protect the public
health, safety or morals from danger is not a taking. The restriction
here is merely the prohibition of a noxious use. Just because a few
private citizens are enriched does not make the law non-public. If the
mining were to set free noxious gas, there would be no question that the
state could prohibit it for the safety of the citizens, without paying
** Lucas v. South Carolina Coastal Council, (1992)
2. Facts: Lucas bought some beachfront property in 1986 for $975,000,
intending to build single-family residences on it. At the time he bought
is, a coastal zone management statute was in effect which regulated the
use of certain "critical areas" in the beachfront areas, but Lucas'
property was not a "critical area." However, in 1988, the state passed
another beachfront management act which completely forbade construction
seaward of a "baseline" marked by the highest points of erosion in the
last 40 years. Unfortunately, Lucas property was seaward of the
baseline, and so he could not build his residential houses on it.
3. Procedural Posture: Lucas brought an action for compensation,
claiming that regardless of whether the legislature had acted
legitimately in furtherance of some police power objective, he was
entitled to compensation. The trial court agreed, finding that the
statute deprived Lucas of "any reasonable economic use of the
lots...rendering them valueless." The Supreme Court of Carolina
reversed, finding that when a regulation respecting the use of property
is designed "to prevent serious public harm", no compensation is owing
regardless of the regulations effect on the property's value.
4. Issue: Whether the 1988 beachfront management statute was a taking
under the 5th amendment, thereby entitling Lucas to compensation.
5. Holding: Yes.
6. Majority Reasoning: [Scalia] first rejected the contention that since
the state had amended the statute to provide for special permits, that
Lucas was still able to apply for this permit, thus making the action
"un-ripe." Even if he won a special permit, there is still a "temporary"
taking until he does. There are two discrete categories of regulatory
action that are compensable without looking at the particular facts - 1)
physical "invasion" of property, and 2) denying all economically
beneficial or productive use of land. Regulations that leave the owner
of land without economically beneficial or productive options for its
use carry with the the heightened risk that private property is being
pressed into some form of public service under the guise of mitigating
serious public harm. However, "harm preventing" and "benefit conferring"
definitions can be made as support of either side of the controversy. It
is not critical that the legislature have found the regulation to be
"harm-preventing." The appropriate inquiry is whether the regulation
deprives the owner of the land of rights that were part of his legal
title; i.e. that were not a nuisance or proscribed under normally
property law. All total regulatory takings of land must be compensated
unless the use would be a common-law nuisance anyway. Here, the land use
was lawful, and it can not be said that there was some "implied
limitation" on Lucas' use of the land for residential houses.
7. Concurrence Reasoning: [Kennedy] reasoned that land is bought and
sold all the time with knowledge that it is subject to the state's power
to regulate. Where there is a taking alleged from regulations which
deprive property of all value, the test must be whether the deprivation
is contrary to reasonable, investment-backed expectations.
8. Dissent Reasoning: [Blackmun] reasoned that there was no significant
taking here, and certainly not a total deprivation of economic value.
The court has unwisely gone against the precedent that the state has the
power to prevent any use of its property that it finds harmful, and that
the state statute is entitled to a presumption of constitutionality. The
state made findings tjat this was to prevent harm, and the court can not
simply disregard them. Also, the new rule that the court fashions -
"deprivation of all econaomically feasible use" itself cannot be
determined objectively. Finally, the court's exception for nuisance is
9. Dissent Reasoning: [Stevens] The court has unwisely departed from the
precedent of Mahon which required a look at the individual facts in each
case. The question of a taking is one of degree, and so requiring the
dimunition in value of the land to be total is too rigid and too narrow.
The generation of a general proposition that "total regulatory takings
must be compensated" as a categorical rule is an unwise approach to
** Dolan v. City of Tigard, (1994)
2. Facts: Dolan owned a hardware store set on an upaved lot downtown in
the City of Tigard. Adjacent to her property was a stream which flooded
often, causing damage to the downtown area. Dolan wished to get a permit
to enlarge her store and pave the lot for parking. A city planning
commission had developed regulations for managing the heavy traffic and
flooding in the downtown area by requiring local business owners to
donate a portion of their land adjacent to the stream as an unimproved
greenbelt and a paved section along their land as a bicycle/pedestrian
route if they wished to get improvement permits. The local legislature
had justified the regulations based on findings that more paving would
cause more run-off (thus requiring the greenbelt), and more development
would cause more traffic (thus requiring the bicycle/pedestrian path).
3. Procedural Posture: Dolan brought an action against the city claiming
that the conditional grant of a portion of her land in return for
approval of her building permit was an unconstitutional taking. The
lower courts found that the city's dedication requirements were
"reasonably related" to the public interest in water and traffic
management, and so the cost should be borne by Dolan for the management
of the increased water flow and traffic that her development would
4. Issue: Whether the local dedication requirement is sufficiently
connected to the purpose for the taking, i.e. water and traffic
5. Holding: No.
6. Majority Reasoning: One of the principle purposes of the takings
clause is to bar the government from forcing individuals to bear public
burdens which, in all fairness, should be borne by the public as a
whole. Thus, under the doctrine of "unconstitutional conditions" the
city may not require an individual to give up her 5th amendment right of
just compensation in exchange for a government granted benefit where the
property sought has little or no relationship to the benefit. Although
there is a nexus between preventing flooding and limiting development
along the sides of the creek, it is not a sufficiently close nexus to
justify an uncompensated taking. There must be a "reasonable
relationship" or a "rough proportionality" between the flooding and the
city's taking of the land. The required dedication must be related both
in nature and extent to the impact of the proposed development. Although
there is a need to have an adjacent greenway, it is not necessary that
the city own the property itself. Also, the bicycle/pedestrian walkway
is not sufficiently justified by statistics shown by the city, who has
the burden of proof here.
7. Dissent Reasoning: [Stevens] The burden of proof should not lie with
the city. A statute should be given the presumption of
constitutionality, putting the burden on the challenger to show that it
is not constitutional. Furthermore, the taking must be viewed from the
entirety of the value of the property. A commercial developer views
these exactions as a business regulation, and a cost of doing business.
They should not be invalidated unless they are sufficient to deter the
owner from proceeding with his planned development.
** Griswold v. Connecticut, (1965)
2. Facts: Griswold was the executive director of planned parenthood. He
was convicted under a Connecticut statute that made it a crime to assist
our counsel someone for the purpose of preventing conception.
3. Procedural Posture: The state appellate courts affirmed.
4. Issue: Whether the Connecticut law is a constitutional exercise of
the state's police power in view of the substantive due process of the
5. Holding: No.
6. Majority Reasoning: The court distanced itself from Lochner, stating
that they do not sit as a "super-legislature" to determine the wisdom
and need of laws that touch economic or social conditions. However, this
law operates directly on the intimate relationship between husband and
wife. Although there are rights that are not specifically mentioned in
the Bill of Rights, the court has held that they nevertheless are
constitutionally protected. For instance the right to choice in
education (Pierce v. Society of Sisters, Meyer v. Nebraska). These
rights were derived from the 1st amendment right of free speech, which
was held to include the freedom of thought and to teach. Without those
peripheral rights, the express rights would be less secure. Thus, the
1st amendment has a "penumbra" (shadow) where "privacy is protected from
governmental intrusion." Likewise, the 3rd amendment prohibition against
quartering of soldiers, and the 4th amendment prohibition of search and
seizure, and the 5th amendment self-incrimination clause, all have a
penumbra of privacy. The 9th amendment guarantees that the bill of
rights is not to be construed as exclusive of other rights retained byt
he people. This present case lies within the zone of privacy created by
7. Concurrence Reasoning: [Goldberg] The due process clause of the 14th
amendment does not incorporate all of the Bill of Rights, but it does
protect "liberty," which is those personal rights which are fundamental,
such as marital privacy. The 9th amendment itself, although it is not an
independent source of rights incorporated by the 14th amendment, lends
strong support. The entire fabric of the Constitution and the traditions
it represents demonstrate that the marital right of privacy is of the
same fundamental importance as the rights specifically enumerated. Where
there is such a fundamental right being infringed, the state must show a
"compelling" interest, not merely "rational relation." The law here is
an extremely bad means-ends fit because the state interest in preventing
extra-marital relationships is not furthered by criminalizing
contraception. [Harlan] felt that the proper analysis was whether this
statute infringed on the due process clause of the 14th amendment
because it violated basic values "implicit in the concept of ordered
liberty" like Palko. The liberty here is so fundamental that it must be
subjected to "strict scrutiny."
8. Dissent Reasoning: [Black] felt that the word "privacy" was being
substituted for "liberty", thus he was afraid that the specific
guarantees of the bill of rights were being too broadened. The
government has a right to invade privacy unless prohibited by some
constitutional provision. Broadening these guarantees has the danger of
diluting them because the concept of "privacy" can be easily narrowed or
broadened according to judicial subjectiveness. The court's analysis
here is too much like Lochner in its attempt to find a "natural law"
basis for constitutional protections not found in the bill of rights.
9. Notes: 1. Although Justice Douglas disavows Lochner as a guide and
instead relies on "penumbras" of the enumerated constitutional rights,
Lochner's "liberty of contract" could possible also be found in a
"penumbra" of the contracts clause, thus there is not a significant
distinction. 2. It is also unclear as to what the scope of the Griswold
right of privacy is. It is probably narrower than a private "autonomy"
of choice. In Eisenstadt v. Baird, the court took a further step in
overturning a statute that prohibited the distribution of contraceptives
(not just the "use", as was the case in Griswold), even by unmarried
couples (not just "married" couples as was the case in Griswold), thus
broadening the scope of the right of privacy to include the right of an
individual to be free from governmental regulation of birth choices. 3.
Griswold does not reveal at what point a liberty becomes so fundamental
as to deserve "strict scrutiny" rather than just "rational relation."
** Roe v. Wade, (1973)
2. Facts: Roe was a single pregant woman representing a class action
suit against a Texas abortion law that made it a crime to "procure an
abortion" except "by medical advice for the purpose of saving the life
of the mother."
3. Procedural Posture: The district court held the law unconstitutional
under the 9th amendment.
4. Issue: Whether the Texas anti-abortion law is constitutional.
5. Holding: No.
6. Pro Argument: The woman's right to end her pregnancy is absolute
based on the considerable pyschological, physical and economic impact
that it has on her to bear an unwanted child. This absolute right bars
any state imposition of criminal penalties for that choice.
7. Con Argument: The state's determination to recognize and protect
prenatal life from and after conception constitutes a compelling state
interest which overrides any right of privacy of the mother. The fetus
is a "person" within the meaning of the 14th amendment, and is thereby
protected directly by the constitution.
8. Majority Reasoning: Although the constitution does not explicitly
mention the right of privacy, the court has held that it exists.
(Griswold, Meyer). This right is limited to personal rights that are
"fundamental." The right of privacy is broad enough to cover a woman's
decision to terminate her pregnancy. This right is fundamental but this
right is not absolute. Although the fetus is not a "person" under the
14th amendment, a state has an interest in safeguarding health of the
mother and in the protection of "potential life." Where there is an
attempted regulation of a fundamental right, the state interest must be
"compelling." With respect to the interest in the health of the mother,
the state's interest becomes "compelling" at the end of the first
trimester because it becomes significantly more unsafe to perform an
abortion after the first trimester. With respect to the interest in the
potential life, the "compelling" point is at the viability of the fetus;
when it becomes capable of meaningful life outside the mother's womb -
about 7 months. Measured against these standards, the Texas law sweeps
too broadly into areas that it does not yet have a "compelling"
interest, thus it is an unconstitutional invasion of privacy. Thus, the
abortion is left to the woman's discretion during the first trimester,
it may be regulated in ways that are reasonably related to maternal
health after the first trimester and before viability, and may be
prohibited after viability.
9. Concurrence Reasoning: [Stewart] The "liberty" protected by the due
process clause of the 14th amendment covers more than just the freedoms
named in the bill of rights. It is a source of protection of
"fundamental" substantive rights that can only be infringed upon by a
state law that passes the "strict scrutiny" test. The state interests in
this case are not compelling enough to support the broad anti-abortion
law. [Douglas] gave three meanings of the word "liberty" as used in the
14th amendment. 1) "autonomous control over the development and
expression of one's intellect, interests, tastes, and personality
(absolute rights protected by the 1st amendment) 2) "freedom of choice
in the basic decisions of one's life respecting marriage, divorce,
procreation, contraception, and the education and upbringing of children
("fundamental" rights subject to some control by the state), and 3)
"freedom to care for one's health and person, freedom from bodily
restraint or compulsion, freedom to walk, stroll or loaf."
("fundamental", but subject to regulation on a showing of a "compelling
10. Dissent Reasoning: [White] The constitution does not guarantee that
the mother's right to abortion is absolute before viability. The
constitution does not balance the "whim" of the mother who does not have
a compelling reason for abortion, over the life of the fetus. The
majority's opinion announces this new constitutional right too broadly,
removing the state's legislature's power to weigh the impacts of
abortion on both sides. [Rehnquist] There is not a right of "privacy"
involved in this case. The right of abortion is not "so rooted in the
traditions and conscious of our people as to be ranked
fundamental."There is only "liberty" guaranteed by the 14th amendment,
which is subject to infringment with due process. The standard should be
basic "rational relation." Again, the court goes too far in judging the
wisdom of the statute as was the case in Lochner. Breaking the term up
into stages and outlining possible regulations that the state may impose
on each is usurping the legislative role, not interpreting the 14th
11. Notes: 2. Blackmun states that he need not resolve when life begins,
yet he still draws a line for when the potentiality of human life is
"compelling." The existence of the disagreement as to when life begins
does not support the Court drawing an arbitrary line, in fact it
substitutes the arbitrary line of the court for the arbitrary line of
the state legislature. 3. Roe is perhaps more subjective than Lochner.
In Lochner, the invalidations rested either on an illegitimate purpose,
or a bad means-ends fit. In contrast, Roe simply states that the state
interest is not important ("compelling") enough. 8. Justice O'Connor's
dissent in Akron advocated a substantial change in the Court's approach
to abortion cases. She felt that the "stages" of pregnancy were too
arbitrary and subject to differing interpretation based on the differing
medical technology available at the time. Rather than the strict
scrutiny/trimester approach of Roe, she advocated that an abortion
regulation "is not unconsitutional unless it unduly burdens the right to
seek an abortion." If the law is "unduly brudensome" then it should be
subjected to strict scrutiny, but not before. In Thornburgh, the same
"undue burden" theme was raised by the O'Connor. Also, Justice White
felt that the Roe decision and its progeny went too far by legislating
requirements that were not fairly read into the Consitution, usurping
the power of the people from overruling through corrective legislation.
In Akron II, the court struck down a statute requiring the provision of
information to the aborting mother, such as alternatives available and
the probable date of viability of the fetus, as being a significant
obstacle to the woman's ability to get an abortion, and not related to
the state's interest in protecting the health of the mother and
potential life of the baby.
** Planned Parenthood of S.W. Penn. v. Casey, (1992) pg. 167 Supp.,
2. Facts: A Penn. statute had five questioned requirements regarding an
abortion: 1) informed consent of the woman, 2) 24 hour waiting period
after receiving information, 3) informed consent of one parent for
minors, 4) notification of the husband, and 5) reporting requirements
for abortion facilities.
3. Procedural Posture: An action for declaratory and injunctive relief
prior to the statute taking effect. The District Court held all
provisions as unconstitutional on their face, and entered a permanent
injunction. The Court of Appeals affirmed in part and reversed in part,
upholding all of the regulations except for the husband notification
4. Issue: What is the appropriate standard to use in determining whether
a statute regulating abortion is unconstitutional.
5. Holding: "Unduly burdensome." "An undue burden exists, and therefore
a provision of the law is invalid, if its purpose or effect is to place
a substantial obstacle in the path of a woman seeking an abortion before
the fetus attains viability."
6. Majority Reasoning: [O'Connor] First, the essential holding in Roe
is reaffirmed. The essential holding is 1) a woman has a constitutional
right to choose to have an abortion before viability without undue
interference from the state, 2) the state has a power to restrict
abortions after viability, and 3) the state has legitimate interests in
both the health of the mother and the life of the fetus from conception.
The constitutional protection comes from the "liberty" of the due
process clause of the 14th amendment, which is a source of substantive
rights beyond the Bill of Rights. It is not time to overrule Roe. Stare
Decisis requires reaffirmation. Roe is not "unworkable", society relies
on it, it is not outdated, it is not entirely based on improper factual
assumptions, and to overrule it would undermine the principled
legitimacy of the Court in the eyes of the people. However, the
trimester framework adopted by Roe is rejected as being unnecessary to
adequately protect the woman's right to choose. It misconceives the
nature of the woman's interest, and it undervalues the State's interest
in potential life. Only where state regulation imposes an "undue burden"
on a woman's ability to choose before viability is the statute
unconsitutional. The informed consent requirement is constitutional
(partially overruling Akron I, and Thornburgh), because it furthers the
states legitimate purpose of reducing the risk that a woman may elect an
abortion, only to discover later, with devastating consequences, that
her decision was not fully informed. The doctor should be required to
provide information as in other medical procedures. The 24 hour waiting
period, although burdensome, is not an undue burden. Informed consent of
minor's parents is not an undue burden because the minors will benefit
from the consultation with their parents. However, the spousal
notification is an undue burden because a significant number of women
will be deterred from abortion for fear of their safety as surely as if
the state had prohibited it altogether. The reporting requirement,
although not related to the state's interest in informed consent, does
relate to health and is a vital element of medical research and health
7. Concurrence/Dissent Reasoning: [Stevens] felt that serious question
arose with respect to the state's attempt to pursuade the woman to
choose childbirth over abortion. The provision of pro-life information
at the critical point of decision is an unconsitutional invasion of the
woman's right to choose. Also, the 24 hour waiting period, in practice,
serves to wear down a woman's ability to get an abortion, without a
showing that it is necessary or helpful. The waiting period appears to
rest on the assumption that a woman is incapable of making a rational
decision in less than 24 hours.
8. Concurrence/Dissent Reasoning: [Blackmun] still fully supported all
of the implications of Roe. He was concerned that there was only 1 vote
necessary to overrule Roe, and that he wsa getting old and stepping down
soon. The Roe framework is more administrable and far less manipulable
thatn the "undue burden" standard. The strictest of scrutiny should be
applied to this case, and under that view, each of the provisions should
be struck down. Also, the fundamental rights protected by Roe are too
precious to be left to an election.
9. Concurrence/Dissent Reasoning: [Rehnquist] believed that Roe was
incorrectly decided, and should be overruled. Overruling Roe would be
entirely consistent with stare decisis because it misinterpreted the
cases it purported to be based on. The majority's arguments on stare
decisis are conculsory and unconvincing. The majority's new "undue
burden" standard is a new standard which represents an unjustified
compromise. The correct standard here should be whether the statute
rationally furthers any legitimate state interest. In each provision, it
does and so should be entirely upheld.
10. Concurrence/Dissent Reasoning: [Scalia] felt that the right of a
woman to choose an abortion finds no protection by the constitution. The
matter is one for the people and the legislature to decide. The proper
issue is not whether the power of a woman to abort her unborn child is a
"liberty" in the absolute sense, it is whether it is a liberty protected
by the constitution. It is not. The constitution says absolutely nothing
about it and the longstanding traditions of American society have
permitted it to be legally proscribed. Roe was "plainly wrong." The
courts should "get out of this area, where we have no right to be."
** Zablocki v. Redhail, (1978)
2. Facts: A Wisconsin law required that a person who had a child who he
was required to pay child support on must gain the permission of the
court before remarrying. Redhail, a deadbeat dad with an illegitimate
daughter, applied for a marriage license but was denied because he did
not ask the court for permission.
3. Procedural Posture: Redhail brought a class action suit to invalidate
4. Issue: Whether the Wisconsin law is consitutional.
5. Holding: No.
6. Majority Reasoning: [Marshall] stated that the right to marry is of
fundamental importance and since the statute significantly interferes
with that right, "critical examination" of the state interests is
required. Reasonable regulations that do not significantly interfere
with decisions to marry may be legitimately imposed, however, this law
did "directly and substantially" interfere. A "critical examination"
means that the law "cannot be upheld unless it is supported by
sufficiently important state interests and is closely tailored to
effectuate only those interests." Although the interests were
legitimate, there was a bad means-ends fit. The statute did not provide
for counseling (as was one of the asserted interests). Also, there were
less intrusive means for "exacting compliance with support obligations,"
such as civil and criminal penalties. The net result of preventing
marriage is more illegitimate children.
7. Concurrence Reasoning: [Powell] felt that the majority opinion was
too broad because it required too strict of scrutiny in an area that was
traditionally subject to state regulation. Particularly, that a sphere
of privacy exists between married couples does not require that the same
level of scrutiny be applied to regulations of entry into marriage.
[Stevens] found that the constitution allowed "direct and substantial"
regulation of marriage, but rested his concurrence on equal protection
grounds - this statute discriminated against the poor. [Stewart] rested
his concurrence entirely on substantive due process grounds, feeling
that the equal protection standards proposed by other opinions were "no
more than due process by another name."
** Bowers v. Hardwick, (1986)
2. Facts: Respondent was charged with violating a Georgia sodomy law by
having homsexual relations with another adult man in his own bedroom.
3. Procedural Posture: Respondent seeks to challenge the
constitutionality of the sodomy statute. The Court of Appeals held that
the law violated the mans fundamental rights because his homosexuality
is a private and intimate association that is beyond the reach of state
4. Issue: Whether the statute is consitutional under the due process
clause of the 14th amendment.
5. Holding: Yes.
6. Majority Reasoning: There is no constitutional right to protection
from state proscription of all private sexual conduct between consenting
adults. According to the Palko standard, in order for a non-Bill of
Rights individual right to be constitionally protected, it must be one
that is "implicit in the concept of ordered liberty," such that "neither
liberty nor justice would exist if they were sacrificed." A similar
standard is those that are "deeply rooted in this Nation's history and
tradition." Sodomy meets neither of these standards. The court refuses
to expand substantive due process in this area, and defers to the
7. Dissent Reasoning: This is not a case about a fundamental right to
sodomy. It is a case about the right to be left alone. The right of an
individual to conduct intimate relationships in the intimacy of his or
her own home is at the heart of the Constitution's protection of
** Kelley v. Johnson, (1976)
2. Facts: Kelley was a police officer who wanted to wear his hair in a
length and style contrary to local police standards.
3. Procedural Posture: Kelley brought an action to invalidate the local
regulation. The lower courts sustained the attack, requiring the police
department to establish a "genuine public need" for the regulation.
4. Issue: Whether a regulation of police officer's personal appearance
5. Holding: Yes.
6. Majority Reasoning: Rehnquist applied a much more deferential
standard of review ot the regulation - "rationality." The liberty
interest of personal appearance is distinguishable from that involved in
Roe. Even if ther 14th amendment protected a liberty interest in
personal appearance, it is outweighed under the rationality standard by
the public interest in maintaining police officers readily recognizable
to the public by providing uniform standards of appearance. Although a
like regulation of the general public might be too intrusive, Kelley was
not a "member of the citizenry at large."
7. Dissent Reasoning: The dissent reasoned that the regulation did not
pass even the rational relation standard because an individual's
personal appearance is central to personal autonomy and integrity.
** Cruzan v. Director, MO. Dept. of Health, (1990)
2. Facts: Cruzan was rendered a vegetable by a car accident in 1983. She
was kept alive by life support equipment that gave her nourishment
through a tube. Her parents sought to have her removed from the life
support equipment. A Missouri statute allowed a responsible party to
pull the plug only if there was "clear and convincing evidence" of the
patient's intent. The only evidence of Cruzan's intent was statements to
former roomates that she would not want to live if she were a
3. Procedural Posture: The trial court found that Cruzan's intent was
"clear and convincing" and ordered the hospital to remove the life
support equipment. The state supreme court reversed.
4. Issue: Whether the state statute requiring the high evidentiary
standard of "clear and convincing evidence" in a right to die case is
constitutional under the 14th amendment substantive due process
5. Holding: Yes.
6. Majority Resaoning: There exists a right to refuse medical treatment
under the liberty interest. This right does extend to an incompetent
person who is in a vegetative state. However, the person's
constitutional rights must be determined by balancing his liberty
interest against the relevant state interests. The state has a strong
and unqualified interest in the preservation of human life. The
evidentiary standard of "clear and convincing evidence" is not
unconstitutional because it puts the burden of error on those who seek
termination of life. If the state is wrong, then the person continues to
live, awaiting changes in the law or in medical science which may change
the error. If the party is wrong, the error can not be corrected. This
statute is similar to the standard required for regular wills.
7. Concurrence Reasoning: [O'Connor] reasoned that the court only
decided whether the standard of "clear and convincing" evidence was
constitutional under these facts. The court has not yet made the more
challenging decision of crafting appropriate procedures for determining
when the surrogate should be allowed to make decisions for the
incompetent. That question will be left for now to the "laboratory" of
the states. [Scalia] felt that the court had no business in this field
at all. There was no constitutional basis for the right to die, and the
court was no better able to determine the correct balance of state and
individual interests than was the state citizenry. The safeguard against
violation of individual constitutional rights is the Equal Protection
Clause which requires that the same laws apply to the democratic
majority as are applied to any individual.
8. Dissent Reasoning: [Brennan] felt that the evidentiary burden of
"clear and convincing" evidence was an impermissible burden on the
individual's right to refuse medical treatment. Since a fundamental
right was at issue, the proper standard should have been a form of
strict scrutiny. The state statute could only be upheld if it is closely
tailored to effectuate only those interests which are legitimate. Here,
the state interest could not outweigh that of the individual. [Stevens}
felt likewise that the state interest could never outweigh that of the
** Goldberg v. Kelly, (1970)
2. Facts: A welfare recipient's benefits were terminated without an
3. Issue: Whether 14th amendment procedural due process required that a
welfare recipient be afforded "an evidentiary hearing before the
termination of benefits."
4. Holding: Yes.
5. Majority Reasoning: [Brennan] Welfare benefits are a matter of
statutory entitlement. They are not mere charity but a means to promote
the general welfare. Thus, termination of benefits without a hearing may
deprive an eligible recipient of his "liberty" and "property".
6. Notes: In Bell v. Burson, a driver's license was held to be an
entitlement under state law, and so a state could not suspend a driver's
license without a hearing to determine fault in an accident.
** Board of Regents v. Roth, (1972)
2. Facts: Roth was a non-tenured college professor hired to teach for
one year at a state university. During that year he made comments
against the university officials. He was not rehired for the next year,
and no reason was given. State law provided that no reason need be
given. Most teachers would be rehired.
3. Procedural Posture: Roth brought an action for violation of his first
amendment rights (being fired for making criticisms) and for a violation
of his 14th amendment procedural due process guarantee (for being fired
from a position of status without a hearing or a reason). The District
Court granted summary judgment for Roth on the procedural due process
claim, and the court of appeals affirmed.
4. Issue: Whether Roth had a constitutional right to a statement of
reasons and a hearing.
5. Holding: No.
6. Majority Reasoning: The 14th amendment protections apply only to
"liberty" and "property." Although Roth's employment was important, it
does not fall under the nature of "liberty" or "property." The failure
to rehire Roth was only one employment prospect for one year, and it did
not damage his reputation (or it may have been found to be protected
"liberty" under Wisconsin v. Constantineau). He was still free to seek
other work. Roth has not shown that his failure to be rehired was based
on his critcisms. It is also not a property interest because Roth, by
his employment contract, does not have any legitimate entitlement to the
7. Dissent Reasoning: [Marshall] There are cases holding that the state
governments are restrained by the constitution from acting arbitrarily
with respect to government employment. Every citizen who applies for a
government job is entitled to it unless the government can establish a
reason for denying the employment. Otherwise, the people's faith in the
government is undermined by apparently arbitrary decisions.
8. Notes: Contrast Perry v. Sindermann, in which the court held that the
plaintiff was entitled to a full trial court hearing on the first
amendment issue (government can not deny rehire for criticism). Also,
even if the teacher did not have formal tenure, if there was an
unwritten practice among the administration to rehire, there still could
be a deprivation of property. In Paul v. Davis, the court [Rehnquist]
held that mere defamation is not a violation of "liberty" (reputation is
not a liberty interest per se), unless it is accompanied by some more
tangible interest such as employment. Thus, a person labeled a
"shoplifter" by local police did not have any constitutional protection
from the defamation, only a remedy in tort law. However, in Vitek v.
Jones, a state prisoner was found to have a liberty interest in not
being involuntarily transferred to a mental institution if his condition
could be adequately treated in the prison. An "objective expectation"
based on the state law and normal official practice was created, and it
could not be violated without a hearing. The liberty interest can arise
not only from the 14th amendment due process clause, but also from state
law itself. In determining what sort of a hearing is required to satisfy
due process, the court [Powell] held in Mathews v. Eldridge, that "due
process is flexible and calls for such procedural protections as the
particular situation demands." The balancing approach was taken which
considered 1) the private interest that will be affected by the official
action, 2) the risk of an erroneous deprivation of such interest
throught the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards, and 3) the government's
interest including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirements would entail.
** Railway Express Agency v. New York, (1949)
2. Facts: Railway operates a fleet of trucks, on which it sells
advertising. The city of New York has an ordinance that forbids the sale
of advertisements on the side of trucks. The city's justification for
the ordinance was that advertisement on the street is a public safety
and traffic hazard.
3. Procedural Posture: Railway was convicted and appealed on equal
4. Issue: Whether the banning of advertisements on the sides of trucks
for hire, while allowing advertisements related to the owner of the
truck's own business, violates the equal protection clause of the 14th
5. Holding: No.
6. Pro Argument: The advertisements on the sides of hired truck are no
more dangerous than those on the sides of a non-hired truck. Thus, it
provides unequal protection because the classification does not bear a
rational relationship to the purpose of the law.
7. Con Argument: Even though it does not eliminate vehicular
advertising, it does eliminate advertising for hire, and to that extent
cuts down on the hazard sought to be controlled.
8. Majority Reasoning: The local authorities have their own reasons for
drawing the classification as they do. If they feel that the advertising
for hire presents a greater hazard than those who advertise their own
business, then the court can not second guess the wisdom of their
judgment. The classification has a relation to the purpose of safety,
and does not result in the kind of discrimination from which the equal
protection clause affords protection [doesn't apply to economic
protection]. It is not a requirement that all evils of the same genus be
eradicated or none at all.
9. Concurrence Reasoning: [Jackson] was concerned that when government
chooses to eliminate only part of a problem, there is a greater danger
that they are acting arbitrarily. Banning advertising altogether would
bring more close scrutiny than only banning ads for hire, thus it is
more likely that there is some arbitrariness in the classification. The
court has often announced that the classification must have an
appropriate relation to the purpose. Here, the classification can only
be viewed as relating to the purpose if one assumes that tolerating
advertising for hire is undesirable since advertising is a danger.
Still, it is not the court's job to second guess the legislature for
this type of economic regulation.
** Massachusetts Bd. of Retirement v. Murgia, (1976)
2. Facts: Mass. had a law that provided for mandatory retirement of
police officers upon reaching age 50. The stated purpose was the
protection of the public by assuring that police officers are physically
3. Procedural Posture: Unknown.
4. Issue: Whether classification of police officers by age is a
violation of the equal protection clause.
5. Holding: No.
6. Majority Reasoning: Age is not a suspect classification for police
officers, and so strict scrutiny is not triggered. Thus, the more
relaxed rational basis test will be applied. Classification by age is
not perfect in deciding who is physically fit to be a police officer,
but perfection is not required. Age bears a rational relationship to
fitness, and so the law is valid. The fact that the state does not use
individual testing instead of an across-the-board mandatory retirement
does not make the law irrational, only imperfect.
7. Dissent Reasoning: [Marshall] felt that the two-tier approach was too
rigid because it forced the court to choose rational relationship test
too often when the cases did not arise to the level of strict scrutiny.
A sliding scale approach would be better, which focuses on the relative
interests of the persons being discriminated against, and the
8. Notes: In Vance v. Bradley, the court was deferential to the
legislature in upholding mandatory retirement of Foreign Service
personnel at age 60. Even though the classification was both under-
inclusive and over-inclusive, the court stated that the burden was on
the challenger to show that the legislative facts on which the
classification is based could not reasonably be believed to be true by
** Strauder v. West Virginai, (1880)
2. Facts: A black defendant was tried by a jury of all white males. A
State law provided that only white males could sit on a jury.
3. Procedural Posture: The defendant tried unsuccessfully to remove to
federal court, and was convicted.
4. Issue: Whether the state law prohibiting non-white males from sitting
on a jury was a violation of equal protection.
5. Holding: Yes.
6. Majority Reasoning: The purpose of the equal protection clause was to
provide protection for the civil rights of blacks. This law clearly
discriminates against blacks. Furthermore, any classification of jurors
by race would be unconsitutional, whether it be nationality based or
otherwise. That is not to say that the state may not prescribe
qualification for its jurors, it just may not do so with respect to
race. [But age, sex, and education was okay. This is the first exercise
of racial protection under the equal protection clause.]
** Korematsu v. United States, (1944)
2. Facts: Shortly after the bombing of Pearl Harbor, the president
issued an order allowing the military commanders to exclude persons of
Japanese ancestry from areas identified as military areas.
3. Procedural Posture: Korematsu was convicted of violating the
4. Issue: Whether classification and exclusion based on Japanese
ancestry during the WWII was a violation of equal protection.
5. Holding: No.
6. Majority Reasoning: All legal restrictions that curtail the civil
rights of a single racial group are immediately suspect, triggering the
"most rigid scrutiny." There must be a "pressing public necessity" for
the classification. Here, it was impossible to segregate out the loyal
from the disloyal persons, so exclusion of the whole class was justified
due to the public dangers involved. The Congress has given the power to
the military to make these military based decisions. They are not based
7. Dissent Reasoning: [Murphy] Contended the the racial classification
was not even rationally related to the end of protecting from invasion
because it was over inclusive. It is an unreasonable assumption that all
persons of Japanese ancestry have the capacity to engage in espionage.
The Army had the more effective alternative, which would accord with due
process, to hold individual loyalty hearings to determine who was a
risk. [Jackson] felt that the decision was even more onerous. A military
commander may breach the constitution temporarily every now and then,
but for the Supreme Court to rationalize it is to make racism part of
the Constitutional doctrine, ready to be used in the future by anyone
who can show military expediency.
** Loving v. Virginia, (1967)
2. Facts: A Virgina statute prohibits interracial marriages between
whites and blacks. The appellants are an interracial couple who went to
D.C. to get married and then returned to Virginia.
3. Procedural Posture: Appellants were convicted, but the trial judge
suspended their sentence for 25 years on the condition that they leave
Virginia and not return together for 25 years.
4. Issue: Whether forbidding interracial marriages is a violation of the
equal protection clause.
5. Holding: Yes.
6. Con Argument: The meaning of equal protection is that state penal
laws must apply equally to whites as well as blacks in the sense that
each member is punished equally. The intent of the framers of the 14th
amendment does not show that they intended to make miscegenation laws
7. Majority Reasoning: This law is based on the promotion of white
supremacy, and the purity of the white race. There is no support in the
historical context for the proposition that equal protection meant only
that penal laws must apply equally to both races. The racial
classification here triggers the "most rigid scrutiny", meaning that
they must be shown to be necessary to the accomplishment of some
permissible state objective. There is no legitimate purpose here.
Restricting the freedom to marry based on racial classifications
violates the central meaning of equal protection.
8 Concurrence Reasoning: [Stewart] " it is simply not possible for a
state law to be valid under our Constitution which makes the criminality
of an act depend upon the race of the actor."
** Palmore v. Sidoti, (1984)
2. Facts: A divorced white woman was awarded custody of her child until
she remarried a black man.
3. Procedural Posture: The trial court awarded custody to the father
based on the idea that it was in the best interest of the child to
protect the child from the discrimination and prejudice that would
accompany her remaining with her mother in an interracial family.
4. Issue: Whether racial classifications are a constitutional
justification for the removal of an infant child from her mother.
5. Holding: No.
6. Majority Reasoning: Racial classifications trigger strict scrutiny.
The classification must be justified by a compelling governmental
interest and must be necessary to accomplish a legitimate purpose. Here,
the state interest in protecting a child is substantial. It is true that
racial discrimination does exist. However, the existence of private
prejudices can not be tolerated by the Constitution, and so are never a
justification for racial classifications.
** Brown v. Board of Education (Brown I), (1954)
2. Facts: Brown was a black child who was denied admission to public
schools in her community because of her race. She was not denied access
to schools for blacks set up under the "separate but equal" doctrine of
3. Procedural Posture: Class action brought on the behalf of all black
students in the U.S..
4. Issue: Whether the racial classifications in public school admissions
are a violation of equal protection, notwithstanding the "separate but
equal" doctrine of Plessey.
5. Holding: Yes.
6. Reasoning: There is no conclusive evidence that the framers of the
14th amendment had any idea, or desire, one way or the other to prevent
blacks from attending public schools alongside whites. Regardless of
whether two separate schools may be called "equal" with respect to the
"tangible" factors of buildings, curricula, qualifications of teachers,
etc, by definition they can not be equal with respect to the intangible
factors of the ability to take advantage of the environment of the
school. In practice, separation of the races promotes the idea of
inferiority of the minority race. It generates a feeling of inferiority
among the minority race which affects their motivation and eagerness to
learn. In public education, separate but equal has no place, and is a
denial of equal protection.
7. Notes: On the same day that Brown was decided under the 14th
amendment, Bolling v. Sharpe was decided under the 5th amendment with
respect to the District of Columbia (federal schools). Although there is
no "equal protection" clause in the 5th amendment, the due process
clause of the 5th amendment affords similar protection with regard to
classifications based on race. "Segregation in public education is not
reasonably related to any proper governmental objective, and thus it
imposes on [Black] children of the District of Columbia a burden that
constitutes an arbitrary deprivation of their liberty in violation of
** Goesaert v. Cleary, (1948)
2. Facts: A Michigan state law provided that no women could obtain a
bartender's license unless she was the wife or daughter of the male
3. Procedural Posture: Challenged under equal protection.
4. Issue: Whether the law violates equal protection; i.e. whether women
have a constitutionally protected right to choose to bea bartender.
5. Holding: No.
6. Reasoning: [Frankfurter] Michigan could ban all women from being
bartenders if it wished. The Constitution does not require legislatures
to reflect sociological insight, or shifting social standards, any more
than it requires them to keep abreast of the latest scientific
standards. Since there may be a reasonable and valid desire in the
legislature to protect female bartenders, the court can not second-guess
the legislature and decide that the real purpose here was for male
bartenders to monopolize the industry.
** Reed v. Reed, (1971)
2. Facts: Idaho had a law designating men to be the administrators of
estates, and not women. The state's reasoning was that it prevented a
burden on the probate courts of having to decide each case based on a
hearing on the merits of whether the petitioning woman or petitioning
man was better suited to be the administrator.
3. Procedural Posture: The state courts had sustained the law as a
legitimate means of reducing the burden on the courts.
4. Issue: Whether the law is in violation of equal protection.
5. Holding: Yes.
6. Reasoning: [Burger] applied a mere rational basis standard to strike
down the law. He refused to find that sex was suspect classification.
Although the reduction of the burden on the probate courts was a
legitimate end, the classification was a completely arbitrary method of
acheiving that end. The equal protection clause was meant to prevent
exactly this kind of a arbirary means-ends relationship.
** Frontiero v. Richardson, (1973)
2. Facts: The military had a practice of automatically allowing a
dependence for wives, but females had to show that their husband was
actually a dependent before getting dependent benefits. The government
rationale was that since most women's husbands are not dependent, but
most men's wives were, it was administratively convenient to put the
burden on the wife of showing dependence.
3. Procedural Posture: Unknown.
4. Issue: Whether the practice violates the equal protection clause.
5. Holding: Yes.
6. Majority Reasoning: Sex is a suspect class. The nation has a long
history of using the physical differences of the sexes, and the
traditional dominance of men in society, to discriminate against women
arbitrarily. Even people of different races were given more equality
than women, and race has been made a suspect class. Since the sex
characteristic frequently bears no relationship to the ability to
perform or contribute, it deserves strict scrutiny. No law which has its
basis in administrative convenience can withstand strict scrutiny.
7. Concurrence Reasoning: [Powell] stated that it was unnecessary in
this case to characterize sex as a suspect classification because it
could be easily decided on the authority of Reed. Also, the equal rights
amendment was still pending, and this would represent a judicial pre-
emption of the legislative function.
** Craig v. Boren, (1976)
2. Facts: A Oklahoma statute provides for a minimum age to purchase 3.5%
beer differently for males than for females. For females, the age is 18,
but for males, the age is 21. The state has statistics that, if valid,
tend to show that more males in the 18-20 range than females in the 18-
20 range are arrested for drunk driving. Thus, their rationale for the
rule is that it is a necessary protection of public safety.
3. Procedural Posture: Unknown.
4. Issue: Whether the law violates the equal protection clause, i.e.
whether the difference between males and females with respect to the
purchase of 3.2% beer does not justify the differential treatment by the
5. Holding: Yes.
6. Majority Reasoning: Reed and Fornteiro stand for the proposition that
classification by gender must serve "important governmental objectives"
and must be "substantially related" to the achievement of those
objectives. The purpose of increasing traffic safety is certainly
"important" and valid. However, there relationship between the
classification and the objective is not sufficiently "substantial." The
statistical evidence presented is statistically invalid because it rests
on too many assumptions which have not been proven. Also, even given
their correctness, they do not justify differential treatment because of
their close results. There is an inherent difficulty (i.e. too many
uncontrollable variables) in using statistical evidence to make broad
7. Concurrence Reasoning: [Powell] felt that the announcement of the new
intermediate standard was not necessary because the case was easily
decidable on the "fair and substantial" relation standard of Reed.
[Stevens] objected to the classification because it was based on an
"accident of birth," and because it is easily circumvented (i.e. the
female can buy the alcohol). It also punishes the 100% of the male
population between 18-20 when the statistics only show that 2% need
8. Dissent Reasoning: [Rehnquist] felt that the new standard was without
authority, and also that the previous cases were not on point because
they involved women seeking relief (as the discriminated party), rather
than men. The justification for Reed was that women were a discrete and
insular class. Men have no such problem. Thus, this should only be given
the "rational basis" test. The legislature has not been irrational or
arbitrary in their actions because they were acting on the best
statistical information they had.
** Mississippi Univ. for Women v. Hogan, (1982)
2. Facts: A state-sponsored Mississippi college was all female, and had
an all female nursing school. Hogan was a man who lived in the college
community, was a registered nurse, and desired to attend the school to
pursue a degree. The school denied his request, and permitted him only
to attend the classes on an audit basis. The state's justification was
that the school compensated for discrimination against women, and was
"educational affirmative action."
3. Procedural Posture: Unknown.
4. Issue: Whether the college's policy of excluding males is a violation
of equal protection.
5. Holding: Yes.
6. Majority Reasoning: [O'Connor] stated that the heightened level of
scrutiny applied in Craig was applicable here. The fact that it
discriminated against males and not females did not matter. The standard
was that "important governmental objectives" must be legitimate, and the
classification must be "substantially related to the acheivement of
those objectives." If the state objectives are based on sexual
stereotypes, they are illegitimate. Here, there was no sexual
discrimination to protect against, because the nursing profession was
90%+ women. Also, the classification was not substantially related to
the purpose, because the presence of male students on an auditing basis,
whether they got credit or not, changed the "environment" of the school,
so it was not necessary to withhold credit for males in order to
accomplish the school's educational goals.
7. Dissent Reasoning: [Powell] The rational basis test should have been
applied here because there was no sex discrimination. It is only an
additional choice for women, not a denial of choice for men. There are
distinct advantages to segregation of sexes in higher education, and
this simply represents the consensual choice of the participants.
** Geduldig v. Aiello, (1974)
2. Facts: California had a disability insurance plan that did not cover
3. Procedural Posture: Unknown.
4. Issue: Whether failing to provide disability insurance for pregnancy
is a violation of equal protection.
5. Holding: No.
6. Majority Reasoning: The classification was not based on gender, as
such. Thus, the rational basis standard is applicable. Although
California has chosen to provide disability insurance, it has not chosen
to pass on the expense of pregnancy to the whole state of employees.
Under equal protection, the state can choose to do things one at a time.
The state has a legitimate interest in keeping the cost of insurance
down. There is no invidious discrimination here because the lawmakers
have divided the state into two classifications, pregnant females, and
non-pregnant persons. As such, both males and females are benefitted.
7. Dissent Reasoning: Dissimilar treatment of men and women based on
physical characteristics tied to one sex is sex discrimination. Thus,
the standard should have been the strict scrutiny of Frontiero. The
state's interest in preserving the fiscal integrity of the insurance
program can nt render the states' use of a suspect classification
8. Notes: In Caban v. Mohammed, the court invalidated a New York law
granting the mother but not the father of an illegitimate child the
right to block the child's adoption by withholding consent, by using the
"intermediate" sex discrimination standard. The classifications were
overbroad generalizations based on stereotypes of unwed mothers being
closer to children than their fathers, and did not further the state's
interest in promoting adoption. However, the dissent [Stewart] stated
that men and women were not similarly situated here, and so there was no
equal protection violation. Also, in Parham v. Hughes, Stewart made the
same analysis (in the majority this time) to reject a sex discrimination
suit on a Georgia law that did not allow an illegitimate father the
bring a wrongful death action for the death of his illegitimate child,
reasoning that mothers and fathers of illegitimate children are not
** Graham v. Richardson, (1971)
2. Facts: A state law prohibited aliens from receiving welfare. The
state justfication was their interest in preserving the minimal welfare
resources for their own citizens.
3. Procedural Posture: Unknown.
4. Issue: Whether denial of welfare benefits to aliens is a violation of
5. Holding: Yes.
6. Majority Reasoning: Classifications based on alienage are inherently
suspect. Aliens are a prime example of a "discrete and insular" class.
[But see Rehnquist's dissent stating that alienage is not an immutable
characteristic]. Also, the federal government has the supreme power to
regulate the conduct of aliens - i.e. immigration, naturalization, and
conduct before naturalization. Thus, there is an overriding federal
interest in preempting this field.
7. Notes: In In Re Griffiths, the court struck down a Conn. law
providing that only U.S. citizens could practice law there; and in
Sugarman v. Dougall, struck down a New York law providing that only
citizens could hold permanent civil service positions. However, Justice
Blackmun added that the state does have some power, in an appropriate
situation, to require citizenship as a prerequisite for office.
** Foley v. Connelie, (1978)
2. Facts: New York had a law barring aliens from becoming state
3. Issue: Whether the law barring aliens from becoming state troopers
was a violation of equal protection.
4. Holding: No.
5. Reasoning: Dougall carved out an exception to the strict scrutiny for
alienage-based state classifications - i.e., where the power the state
is exercising is clearly within its "governmental function" or
"political function." Otherwise, there would be no benefit to
citizenship. Thus, in these cases, rational relationship is the
appropriate standard. Since police officers exercise a very broad
discretion in enforcement of laws, it would be as anomolous to say that
a citizen could be exposed to the broad discretion of a non-citzen
police officer as it would be to say that judges and juries can be made
up of aliens. Thus, citizenship bears a rational relationship to law
6. Notes: In Amach v. Norwick, the court applied the Dougall exception
and Foley to hold that a state may refuse to employ teachers who are
eligible for naturalization, but refuse it, stating that less demanding
scrutiny is required where aliens are excluded from "state functions"
that were part of the state's "governmental function."
** Bernal v. Fainter, (1984)
2. Facts: Texas had a state law barring aliens from becoming notaries
3. Issue: Whether the bar was a violation of equal protection.
4. Holding: Yes.
5. Reasoning: Generally, alienage is a suspect classification, which can
only pass strict scrutiny if there are compelling state interests and
the classification is the least restrictive means available. The only
narrow exception was the Dougall case, where the exclusion is from the
state's "governmental function" or "political function." To determine
this exception, a two-part test is used. First, the classification must
not be too under- or over-inclusive. Second, the exclusion must only
apply to "persons holding state elective or important nonelective
executive, legislative and judicial positions," i.e. those that
"participate directly in the formulation, execution, or review of broad
public policy." This is a very narrow exception. Notaries public do not
fall within the "political function" exception, because their duties are
"clerical and ministerial" rather than the exercise of broad discretion
6. Notes: Federal restrictions on aliens were addressed in Hampton v.
Mow Sun Wong (invalidating a federal bar on aliens holding competitive
civil service positions), and Mathews v. Diaz, (upholding a restriction
on alien eligibility for federal Medicare conditioned on (a) admission
for permanent residence, and (b) continuous residence in the U.S. for
** Levy v. Louisiana, (1968)
2. Facts: A state law prohibited unacknowleged illegitimate children the
right to recover for the wrongful death of their mother. The state
justification was administrative simplification of proceedings by
relying on "formal papers."
3. Issue: Whether the law violated equal protection.
4. Holding: Yes.
5. Majority Reasoning: [Douglas] The test is rational basis, but the
court has been extremely sensitive when it comes to basic civil rights.
There is no reason that the tortfeasor should go unpunished just because
the mother had illegitimate children rather than legitimate ones. It is
invidious to discriminate against the illegitimate child when his
characteristics have no relation whatsoever to the nature of the harm
inflicted on the mother.
6. Dissent Reasoning: [Harlan] The interest that one person has in
another's life is inherently intractable. Thus, the state may
justifiably and rationally define eligible wrongful death plaintiffs in
terms of their legal, rather than biological relation to the deceased.
7. Notes: Three years later in Labine v. Vincent, the court
distinguished Levy, and upheld a law, under the rational basis test,
that subordinated the intestate succession rights of an acknowleged
illegitimate child to those of other relatives of the parent. However,
the court followed Levy in Weber where the death benefits from a
workmen's compensation law could not be subordinated to the claims of
legitimate children. In Matthew v. Lucas the court upheld a social
security benefits law which made benefits harder to get for surviving
illegitimate children, distinguishing all prior illegitimacy cases, and
stating that illegitimacy was not "an obvious badge" like race or sex.
** Mills v. Habluetzel, (1982)
2. Facts: A Texas law required that a paternity suit to identify the
natural father of an illegitimate child for the purpose of obtaining
child support must be brought before the child was one year old. The
nominal state purpose was to prevent fraudulent claims later in life by
3. Issue: Whether the law violated equal protection.
4. Holding: Yes.
5. Majority Reasoning: [Rehnquist]The support opportunity provided by
the state [i.e. benefits depend on a paternity hearing] must be more
than illusory. The law must bear a "substantial relationship to a
legitimate state interest." The period for ascertaining the fatherhood
of the child must be sufficiently long to permit those who have an
interest in the child to bring an action on their behalf despite the
personal difficulties that may surround the birth of a child outside of
wedlock. Also, the time limit set does not have a rational relationship
to the state purpose of preventing fraudulent claims.
6. Concurrence Reasoning: [O'Connor] feared that the majority opinion
might be read as approving an arbitrarily longer time limit (such as
four years). Thus, she stated that the practical considerations that
existed within the first year, which served to make the one year statute
of limitations invalid, may also exist for longer periods, which would
make them also invalid.
7. Notes: The court struck down a two-year limit on paternity suits in
Clark v. Jeter. Finally, in Clark v. Jeter, Justice O'Connor stated that
the "intermediate" level of scrutiny is applicable to illegitimacy
["substantially related to an important governmental objective"], and
struck down a 6-year limit on bringing paternity actions because it was
not "substantially related" to the state interest in avoiding the
litigation of stale or fraudulent claims.
** Cleburne v. Cleburne Living Center, Inc., (1985)
2. Facts: A texas city denied a special use permit to a person who
intended to build a 200-person home for the mentally retarded. A city
ordinance gave the city the power to require a special use permit for
homes for mentally retarded persons, but not for other classifications,
such as boarding houses, sanitariums, nursing homes, etc. The city's
rationale was that the neighboring property owners did not want it, a
junior high school was across the street, it was located on a 500 year
flood plain, and there would be a lot of people living there.
3. Procedural Posture: The lower court struck it down under the
"intermediate" level of review, stating that it did not "substantially"
furhter an "important governmental interest."
4. Issue: Whether the ordinance requiring a special use permit hearing
for establishment of mentally retarded care homes violates equal
protection, and under what standard.
5. Holding: Yes. Rational basis.
6. Majority Reasoning: [White] The general rule for equal protection is
rational basis. The mentally retarded are not a class that require
heightened scrutiny because they are 1. not a homogenous group, 2. they
are specially protected in many ways by the legislature, and 3. most
laws concerning the mentally retarded are likely to be beneficial and
not based on prejudice. However, here the law appears to be motivated
only by prejudice. The negative attitudes of the surrounding property
owners are not a valid basis for discrimination. Also, there are no
other distinguishing characteristics that are inherent to the retarded
people that would require that they be treated differently with regard
to the location of the home, or its size. Clearly, if other homes, such
as those for the insane, or convalescent, are allowed in the same area,
the law is not even rationally related to the city's objectives because
it is substantially underinclusive.
7. Concurrence Reasoning: [Stevens] felt that putting a name on the
standard of review to be used was inappropriate because there is just a
single continuum of standards. In some cases, certain characteristics
are relevant, and in others, they are not. The court merely needs to ask
what the purpose of the law is, and what the characteristics of the
group are that justify the disparate treatment. [Marshall] felt that the
standard should have been a heightened level of review, because of the
tradition of discrimination, and the characteristic of mental
retardation is often used as a proxy for reduced capacity. The majority
should have admitted that it was using heightened scrutiny because this
law would probably pass the extremely deferential rational basis
standard of Lee Optical (i.e. "reform may take one step at a time"
allows the city to require the special use permits for mentally retarded
persons but not for other similar classes).
8. Notes: In James v. Valtierra, Justice Black's majority opinion
rejected an equal protection challenge to a California constitutional
requirement that "no low rent housing project shall hereafter be
developed by any state public body" without prior approval in local
referendum. Even though the law had the practical effect of
disadvantaging low-income persons, the law passed the rational basis
standard. Marshall vigorously dissented stating that the law was on its
face invidious discrimination against the poor, as suspect class which
demanded exacting scrutiny.
** Yick Wo v. Hopkins, (1886)
2. Facts: A San Franscisco law required that laundries could not be
operated in other than brick or stone buildings without approval by the
city. All but one of 88 non-chinese applicants were granted approval to
operate in a non-stone building. However, not a single one of 200
chinese applicants had been granted approval.
3. Procedural Posture: Unknown
4. Issue: Whether the statistically unequal administration of a facially
neutral law is violation of equal protection when it operates to
discriminate in practice against a racial minority.
5. Holding: Yes.
6. Reasoning: Statistics show that the application of this law was
clearly discriminatory against chinese launderers. Even if the law is
neutral on its face, it is a violation of equal protection to enforce it
in an invidiously discriminatory manner.
7. Notes: In Swain v. Alabama, the court held that a prosecutor may use
peremptory challenges to strike all black jurors from a jury, without
violating equal protection unless a showing could be made that it was
systematic discrimination. However, in Batson v. Kentucky, the court
overruled Swain to hold that it was a violation of equal protection if
it was based on the justification that blacks, as a class, would be
unable to impartially consider the State's case against a black
defendant. Also, in Snowden v. Hughes, the court stated that "unequal
application" of statutes fair on their face is not a violation of
unequal protection "unless there is a showing of intentional or
** Palmer v. Thompson, (1971)
2. Facts: The city of Jackson, Mississippi, closed all of its public
swimming pools after they had been ordered desegregated. The city's
purpose was that desegregation of the pools could not be done
economically or efficiently.
3. Issue: Whether the closing of the pools was a violation of equal
4. Holding: No.
5. Majority Reasoning: [Black] stated that there was no affirmative duty
to operate swimming pools. The motivation of the persons who passed the
law is difficult for the court to determine, and does not render the
closing unconstitutional solely because it appears to be racially
motivated. If this were the only reason, then the city could re-pass the
law with a different purpose, which would then make it constitutional.
6. Dissent Reasoning: [White] felt that the closing of the pools was an
official public policy statement by the city that blacks are unfit to
associate with whites in public pools. Racial animus was the only
motivation for this law, and it thus violated equal protection because
it did not have the same affect on whites as it did on blacks.
7. Notes: In Griffin v. County School Board of Prince Edward County, the
court struck down the school board's attempt to shut down the public
schools and support private schools only to avoid desegregation, holding
that the motive was unconstitutional. Also, in Gomillion v. Lightfoot,
the court struck down a redrawing of the city's borders which had the
effect of eliminating most black voters, an no white voters, holding
that the motive, as well as the effect, was unconstitutional.
** Griggs v. Duke Power Co., (1971)
2. Facts: A company had an employment screening procedure that required
the applicants to take a general intelligence test and have a high
school diploma. The practical effect was that fewer blacks were being
hired, and the standards were not shown to have a predictive affect on
3. Issue: Whether, in a Title VII case, the giving of general
intelligence tests and requiring a high school diploma for employment
are violations of equal protection if the practical result is to
statistically exclude more blacks than whites, and the tests do not have
a demonstrated predictive affect on job performance.
4. Holding: Yes.
5. Reasoning: Artificial and unnecessary barriers to employment operate
invidiously to discriminate against blacks. The motive of good or bad
intent does not change the fact that the practical affect of the
employment standards was discrimination against blacks. Congress
intended to prevent the consequences of racially biased employment
screens, not just the motivation behind them.
6. Notes: In Wards Cove Packing Co. v. Atonio, the court held that mere
statistical data alone was not enough to show discriminatory effect of
policies. The burden was on the plaintiff to show that qualified
individuals were being discriminated against, and that the source of the
unequal representation of races in the work force was due to the
particular policy in issue, and not to other causes that are beyond the
control of the employer. However, the dissent stated that the majority
position would make it too difficult for legitimate claims to overcome
the burden of proof. However, in Jefferson v. Hackney, the court
rejected a de-facto challenge to a state welfare benefit calculation law
(granting less "need" to AFDC recipients), stating that just because
there were "naked statistics" showing more minorities in AFDC rather
than other welfare programs, did not mean that the law violated the 14th
** Washington v. Davis, (1976)
2. Facts: The D.C. police department administers an entrance examination
which tests reading and writing communication skills. The test was
developed by the U.S. Civil Service Commission, and is the same test
used generally throughout the civil service. Statistically, more blacks
than whites failed the test.
3. Procedural Posture: The district court found that the test was not
discriminatory merely because of the effect. However, the court of
appeals applied Griggs (which was applicable to Title VII cases), to
invalidate it solely on its disparate statistical effect.
4. Issue: Whether the D.C. police department employment exam is a
violation of equal protection due to its de facto effect of more blacks
failing than whites.
5. Holding: No.
6. Majority Reasoning: A facially neutral statute or policy can still be
discriminatory in effect. The invidious discriminatory purpose behind it
may be inferred from the totality of the relevant facts, including the
statistical evidence that it bears more heavily on one race rather than
another. Nevertheless, a law does not violate equal protection simply
because it may affect a greater proportion of one race than another. The
D.C. police department has the legitimate interest of setting minimum
standards for its police officers. That blacks did not score as well as
whites does not demonstrate racial discrimination. Also, there is also
evidence that the police department actively and aggressively recruits
black officers, so there is no inference of racially discriminative
motive. The more rigorous standard of Griggs (requiring the defendant to
"validate" the requirements) is only applicable to Title VII cases, not
14th or 5th amendment equal protection.
7. Concurrence Reasoning: [Stevens] felt that bare statistics may be
probative enough in some situations to demonstrate racial discrimination
(such as in Yick Wo) without more. But here, the statistics were not
probative enough because the D.C. police only represented a small sample
of those taking the test.
8. Notes: In Arlington Heights v. Metropolitan Housing Corp., the court
reaffirmed Davis, holding that although the "ultimate effect" of a law
may be racially discriminatory, it will not violate equal protection
absent "proof of racially discriminatory intent or purpose." "Subjects
of proper inquiry" to determine intent would be the history leading up
to the enactment of the law, whether the statistical effect was grossly
lopsided (as in Yick Wo), and departures from normal procedural
sequence. Even if an improper motivation can be shown, the city could
still provide evidence that the law would be sustainable on otherwise
** Personnel Administrator of Mass. v. Feeney, (1979)
2. Facts: Mass. had a state law which gave an "absolute lifetime"
preference to veterans over non-veterans for civil service positions.
The veterans in Mass. were 98% male and 2% female. In effect, the law
gave statistically significant preferences to males.
3. Issue: Whether the law, which is facially neutral, is nevertheless a
violation of equal protection given its disparate impact on men vs.
4. Holding: No.
5. Majority Reasoning: Davis stands for the principle that the 14th
amendment "guarantees equal laws, not equal results." Clearly, this law
is facially neutral. Although it has a disparate affect on women, that
is the result of the traditional military roles of men and women, which
is not on trial here. Also, many men are disadvantaged by this law as
well. It is not a pretext for discrimination against women, but rather
against non-veterans, a significant portion of whom are men.
6. Concurrence Reasoning: [Stevens] stated that the statistics show
clearly that there are about 2 million men disadvantaged by this
preference, and only about 3 million women. When taken in combination
with other evidence, this difference does not support a finding that the
law was intended to benefit males as a class.
7. Dissent Reasoning: [Marshall] felt that the law was purposeful
discrimination because the legislators were presumed to have intended
the natural and probable consequences of the law - discrimination
against women. There is clear evidence from the legislative history that
the legislature understood the impact against women, and took steps to
make sure that women could still qualify for the lower-paying jobs.
** Green v. County School Board, (1968)
2. Facts: A small school district had a racially desegregated
population, but the "freedom of choice" rule had done very little to
promote desegregation of the schools. No whites had gone to the
predominantly black school, and few blacks were attending the white
3. Issue: Whether the freedom of choice plan was an adequate compliance
with the desegregation mandates of Brown II.
4. Holding: No.
5. Reasoning: The racial identification of the schools between white and
black had remained completely intact. The goal of Brown was to
transition to a single, non-racial school system. Clearly, the school
board here has not acheived that goal. There has been too much delay in
the implementation of Brown II remedies, and it is up to the school
board to take more aggressive action. Freedom of choice is unacceptable
because its practical effect is to maintain the status quo.
** Swann v. Charlotte-Mecklenburg Board of Education, (1971)
2. Facts: In Charlotte, N.C., the school in a metorpolitan area was not
becoming racially desegregated, and so the lower court instituted a
busing plan, and a grouping plan to affirmatively integrate the schools
to represent the underlying racial representation in the population.
3. Issue: Whether the district court had the constitutional authority to
force integration in the schools.
4. Holding: Yes.
5. Reasoning: The court may excercise broad equitable remedial powers
when there is a constitutional violation, as there was here. The
mathematical ratio proposed by the lower court of 71% to 29% is not a
rigid requirement, but it is a starting point and well within the courts
power to use mathematical ratios to ensure desegregation in practice.
The transfer arrangement is also valid, given that the students are
provided free transportation and that room is made for them at the
target school. Even though this will be inconvenient and appear bizzare,
it is necessary in the short term to overcome years of building
infrastructure designed to support segregation. Thus, pairing and
grouping is valid. Lastly, the use of school buses is widely practiced
and may be employed as a means of forcing integration.
** Milliken v. Bradley, (1974)
2. Facts: A particular urban school district in Detroit was found to
have de jure segregation. There were other school districts in the
3. Procedural Posture: The lower court found that the appropriate remedy
would be interdistrict in nature, including busing of suburban outlying
school districts. They based this holding on the notion that school
district lines were a matter of political convenience, and may not be
used by the state to deny constitutional rights.
4. Issue: Whether the remedy for unconstitutional de jure segregation
found in a particular public school district may include busing the
suburban school districts also.
5. Holding: No.
6. Majority Reasoning: The scope of the lower court's remedy exceeded
the scope of the constitutional violation. The remedy must not be
interdistrict if the violation was not interdistrict. Since only one
particular school district was found to have de jure segregation, it was
the only district to which remedies were appropriate. There was no
finding that the other school districts contributed to the segregation.
7. Dissent Reasoning: [Marshall] The decision of the majority
emasculates the equal protection. Where de jure segregation is found, it
is the duty of the court to eliminate it "root and branch" which
requires the greatest degree of actual desegregation. There is no reason
why the drawing of the school district lines should sheild the state.
[White] stated that the result is that the state can sheild itself from
constitutional attack by vesting more power in its individual school
districts. The majority's plan will result in even more white flight.
8. Notes: However, in Hills v. Gautreaux, in deciding that the court
could validly take remedial measures against HUD beyond the city
boundaries, the court stated that nothing in Miliken suggests a per se
rule that federal courts lack the power to order parties found to have
violated the Constitution to undertake remedial efforts beyond the
municipal boundaries of the city where the violation occured. In
Missouri v. Jenkins, the court held that the remedy of directly imposing
taxes on a school district's resident in order to finance the
desgregation was beyond the limit of their power unless no other
alternative existed. However, the court could allow the school district
to impose its own taxes, and enjoin any state laws that would prohibit
such a levy. In Spallone v. United States, the court held that personal
contempt orders against city council members for refusing to implement a
desegregation plan could not be upheld, although contempt orders against
the city itself were permissible.
** Board of Education of Oklahoma City Public Schools v. Dowell, (1991)
pg. 226 Supp., briefed 2/18/96
2. Facts: Oklahoma City had been ordered to desegregate its schools, and
in 1972, the court ordered mandatory busing to integrate the schools.
The busing plan was successful in integrating the schools, and so in
1977, the court entered an order terminating its jurisdiction to enforce
remedies. In 1984, the school board voted to institute a neighborhood
(non-bussed) school system for K-4 students.
3. Procedural Posture: A motion was made to "re-open" the case, and the
district court denied it. The court of appeals reversed, and the Supreme
Court reversed the court of appeals.
4. Issue: Whether a federal court has the power to terminate its
jurisdiction over enforcing remedies after a reasonable time has passed
in which the school district has complied with the remedies.
5. Holding: Yes.
6. Majority Reasoning: The federal court must give way to the concern
for the autonomy of the local control of the school board after the
remedy has been given effect. This does not mean that the court must
take for face value that the board promises not to return to segregative
practices. However, the court must recognize that the composition and
motives of the school board change over time, and must determine whether
there will be a good faith effort to continue the desegregation in the
future, unsupervised. Even if the court is wrong, the equal protection
clause still exists, and a new action may be brought if the school board
7. Dissent Reasoning: [Marshall] felt that 13 years of compliance after
65 years of forced segregation was not enough. The remedy should be in
effect until the effects of the prior segregation are fully eliminated.
** Freeman v. Pitts, (1992)
2. Facts: The school board in DeKalb, Ga., had been forcibly integrated
from 1969 to 1986. However, instead of becoming more racially
integrated, the school district became less racially integrated, due to
the demographic change in the area (more blacks) rather than any
intentional resistance to desegregation.
3. Procedural Posture: The school board moved to have the remedial order
dismissed, and the district court found that it had been complied with
in part, but that many areas needed continued supervision. Thus, the
district court withdrew from supervision of the areas that it deemed
appropriate. The school board still sought total dismissal, and the
court of appeals upheld the district court's holding that some remedial
measures were still needed, except that it reversed with respect to the
holding that the court could partially dismiss.
4. Issue: Whether the district court has the power to withdraw from
supervision of certain facets of a desegregation plan if there are other
facets that still require supervision in order to accomplish a "unitary"
5. Holding: Yes.
6. Majority Reasoning: The court may change its remedies to fit the
violations. Due to the strong interest a local school district has in
self-determination, the court exceeds its remedial powers when it
continues supervision of programs that no longer alleviate the initial
constitutional violation. This withdrawal may proceed in incremental
stages, especially where it is found that the contributing factor to the
re-segregation is a change in demographics which is beyond the control
of the school board.
7. Concurrence Reasoning: [Scalia] proposed that the time had come to
resolve what the court was going to do about terminating the temporary
remedial measures, and reinstating the traditional principles of law
which require proof of intent and causation. [Souter] indicated that it
was possible that the school system's policies contributed to the change
in demographics, in which case, the remedial measures should remain in
place. [Blackmun] agreed with Souter and was in favor of remanding the
case for the school district to try to prove that the racially
identifiable schools are in no way the result of past segregation.
8. Notes: In United States v. Fordice, the court held that the state had
an affirmative obligation to dismantle the dual-standard university
system as well as the elementary and secondary schools. Regardless of
whether an independent and legitimate purpose now existed for the
policies that were intentionally discriminatory in the past, they must
be dismantled. Note that Justice Thomas felt that there may be a "sound
educational justification" for preserving the predominantly black
colleges that had done so much for blacks during the years of
segregation. In Missouri v. Jenkins (1995), the court again stated that
the lower court had exceeded its judicial power, this time in attempting
to make one of the local schools spend a considerable amount of money to
make it a "magnet school" in order to counteract the effects of white
flight. Notably, Justice Thomas again stated that separate education by
choice for blacks was not by definition inferior. The equal protection
clause only protects from intentional discrimination by the state, not
from imagined inferiorities of black educational establishments assumed
by social science data studies.
** Kahn v. Shevin, (1974)
2. Facts: A state property tax exemption existed for widows, but not for
3. Procedural Posture: Unknown.
4. Issue: Whether the "benign" gender classification in favor of women
promoted by the state statute is a violation of equal protection, and
under what standard should the court scrutinize it.
5. Holding: No. Rational basis.
6. Reasoning: The law was easily sustainable because it rested upon some
ground of difference having a "fair and substantial relation" to the
subject of the legislation. Laws designed to rectify the effects of past
discrimination against women are justifiable.
7. Dissent Reasoning: [Brennan] urged "close judicial scrutiny" of even
benign gender classifications. Although the law served a "compelling
governmental interest," the classification was not narrow enough to
effect that interest alone. Less drastic means were available to remedy
the history of discrimination, i.e. the state could have limited the
exemption to only those widows who needed it.
8. Notes: In Orr v. Orr, by applying intermediate scrutiny, the court
struck down laws which authorized the Alabama courts to impose alimony
obligations on husbands but not wives. Since alimony hearings were
already being conducted, they could also be used to determine the wife's
obligations, if any. The law was based on prohibited stereotypes.
However, in Califano v. Webster, also under intermediate scrutiny, the
court upheld a benign gender classification that allowed women to
discard three more of the lower-paying employment years than men when
determining social security benefits, as a legitimate way of redressing
the past effects of discrimination against women in their wages.
However, in Schlesinger v. Ballard, the court upheld a difference in
promotional standards between male and female Naval Officers, stating
that the male and femal officers were not similarly situated. In
Weinberger v. Wiesenfeld, the court invalidated a social security
provision that paid death benefits to the widow and children in case of
the father's death, but only to the children in case of the mother's
death, finding that it actually discriminated against women by providing
them less post-death benefits than a similarly situated male. Similarly,
in Califano v. Goldfarb, the court struck down a similar statute that
required the widower to show that he got at least half of his support
from his deceased wife in order to obtain her death benefits.
** Wengler v. Druggists Mutual Ins. Co., (1980)
2. Facts: Wengler's wife died in a job related accident. He sought to
collect worker's compensation for her death. However, a state law
required that the widower not be able to collect for worker's
compensation for his wife's death unless he could show that he was
physically disabled or dependent on his wife's salary. Wengler did not
fit either of these qualifications.
3. Procedural Posture: Wengler brought an action challenging the state
law on equal protection grounds. The state court rejected the challenge,
holding that the substantive difference in the economic standing of
working men and women justifies the advantage that the law gives to the
4. Issue: Whether the law is a violation of equal protection, even
though it presumably gives widows a benefit.
5. Holding: Yes.
6. Reasoning: The law here is a discrimination against both living
women, and surviving men. In both cases, it deprives the parties of the
benefits they would get as (or from) a similarly situated male. Thus,
under intermediate scrutiny, although having enough resources to provide
for needy spouses is an important governmental objective, the
classification used is not substantially related to the accomplishment
of this objective. The state could either pay benefits to both spouses
without a showing, or require a showing from both spouses. However, the
difference in treatment here appears to be solely based on the
stereotypical assumption that the widower will not need the assistance
in most cases. As such, it appears to be only for administrative
convenience. Although administrative convenience may properly withstand
heightened scrutiny in some contexts, it does not in this case.
** Regents of Univ. of Cal. v. Bakke, (1978)
2. Facts: Bakke was an applicant to the U.C. Davis Medical School, which
had two separate admissions programs - one for whites, and one for
minorities. They had a 16% minorities quota system. Bakke was not
admitted, but minorities with significantly lower qualifications were
3. Procedural Posture: Bakke filed suit in the lower court under Title
VI of the civil rights act and equal protection. The trial court held
that the university could not take race into account, but refused to
order Bakke's admission claiming that he had failed his burden of proof
that he would have been admitted but for the existence of special
admissions. The Cal. Supreme Court applied strict scrutiny to strike it
down, holding that there were less intrusive means of furthering the
important state interest in having minority physicians, and ordered
4. Issue: Whether the U.C. Davis admissions program is a violation of
equal protection because it discriminates intentionally against whites.
5. Holding: Yes.
6. Majority Reasoning: The fact that this is discrimination against
whites (and thus benign against minorities) does not change the court's
obligation to use strict scrutiny, because this is still a racial
classification. Any classification based upon race must be necessary to
accomplish a substantial state interest. A classification which
intentionally disadvantages one race in order to grant other races an
advantage is unconstitutional in the absence of specific findings of a
constitutional violation [de jure]. The constitution forbids
discrimination for its own sake. The state has a legitimate interest in
eliminating and correcting for discrimination. However, there has been
no finding of any constitutional violation which would give rise to a
requirement for a remedy. The state's interest in promoting diversity in
education is also legitimate. However, race may only be one factor in
the determination of diversity among otherwise qualified applicants.
There are other characteristics besides race that promote diversity.
Since the white students may only compete for certain seats, and the
minorities are free to compete for every seat, solely because of race,
this practice violates the equal protection clause because there are
less burdensome alternatives available, such as aggressive recruiting.
7. Concurrence Reasoning: [Brennan] The majority is correct in stating
that race may be considered in admissions. Strict scrutiny is applicable
here, but this admissions process passes it. Sometimes the white
majority is required to bear the burden of societal discrimination in
the remedying of past discrimination. To hold that there must be finding
of actual constitutional violations as a prerequisite to race-conscious
remedial actions would discourage voluntary compliance. The purpose of
the University's policy is to overcome the effects of prior segregation.
It compensates applicants who would have been more admittable but for
the existence of societal discrimination. Once admitted, they are judged
by the same standards as the other students. [Marshall] It is
unnecessary in the 20th century for individual blacks to demonstrate
that they were discriminated against, given the long history of state-
sponsored, legal discrimination. [Stevens] The issue of whether race
could ever be used as a factor in the determination of admissions was
not before this court. This was not a class action, but an individual
action. The only admissions policy before the court was that of U.C.
** Richmond v. J.A. Coroson Co., (1989)
2. Facts: Richmond instituted a 30% minority set-aside program for all
city construction projects. A particular contractor was the lowest
bidder for a city project, but he had not complied with the set-aside
provision, and so his bid was refused.
3. Procedural Posture: The District Court found that the set-aside
program was a legitimate remedy for past discrimination. The court of
appeals applied strict scrutiny and reversed, and the Supreme Court
4. Issue: Whether the Richmond set-aside program is a violation of equal
5. Holding: Yes.
6. Majority Reasoning: The city of Richmond does not have the power to
institute a "benign" or compensatory program that discriminates against
whites beyond the limits of the 14th amendment. This is overt racial
discrimination, and must be subjected to strict scrutiny. Here, the
city has only provided general assertions that there has been
discrimination against minorities in contracting, or that such
discrimination has been a cause of their under-representation. The
absence of minorities firms may be attributable to many other reasons,
and it is speculation to assume that it was the product of intentional
discrimination. If the city desires to use suspect classifications, it
can not merely rest upon generalizations, because racial classifications
are generally harmful to both sides. Past societal discrimination is not
sufficient to justify racial quotas, and thus there is not a compelling
state interest in providing a quota. Also, the racial classification of
minorities is over-inclusive because it includes Eskimos and Aleuts. It
cuts against the city's declared remedial purpose that these groups are
included given that there is certainly no evidence of any discrimination
7. Dissent Reasoning: [Marshall] The city should be able to have the
power to correct for past wrongs without having to shoulder the enormous
administrative burden of proving that there was past discrimination that
led to the effects.
** Adarand Constructors, Inc. v. Pea, (1995)
2. Facts: Adarand is a highway construction firm that submitted the
lowest bid on a subcontract. A minority-owned construction firm also
bid, and won the contract because the general contractor was given bonus
money under federal statutes for awarding the subcontract to a firm
controlled by "economically ans socially disadvantaged" persons.
3. Procedural Posture: Adarand lost by summary judgment in both the
District Court and the Court of Appeals. Both courts felt that the
recent Supreme Court rulings in Fullilove and Metro Broadacasting, which
applied a level of "intermediate scrutiny" to federal affirmative action
(benign racial classifications), were controlling.
4. Issue: What is the proper standard of review for federal racial
5. Holding: Strict scrutiny. There are three general propositions with
respect to governmental racial classifications, 1) skepticism (racial
classifications are inherently suspect, invoking strict scrutiny), 2)
consistency (the standard of review does not depend on which race is
benefitted and which is discriminated against), and 3) congruence (equal
protection under the 5th amendment is the same as that under the 14th
6. Majority Reasoning: The history of equal protection jurisprudence
must be traced to determine the proper course. In Bolling v. Sharpe, the
court stated that the phrase: "all legal restrictions which curtail the
civil rights of a single racial group are immediately suspect" carries
no less force in the federal context. Secondly, in Croson, the court
announced that the strict scrutiny standard applied to any racial
classification under the 14th amendment. Although some other cases have
been more split (i.e. Bakke, and Wygant), the same themes are echoed
there. Metro Broadcasting, which used intermediate scrutiny for the
federal government, was a departure from stare decisis, and is therefore
overruled to the extent that it is inconsistent with this opinion. All
racial classifications require strict scrutiny in order to determine
whether the supposedly "benign" purpose is valid, otherwise we risk
making the same mistake as in Korematsu.
7. Concurrence Reasoning: [Scalia] felt that a racial classification
could never serve a "compelling interest" [and thus never pass strict
scrutiny] because that only fosters racial hatred, even when done for
the most beneficial reasons. The Constitution protects individuals, not
groups, and there are no debtor and creditor races. [Thomas] wrote
separately to disagree with the dissent's premise that there is "a
racial paternalism exception to the principle of equal protection."
8. Dissent Reasoning: [Stevens] Remedial-based race classifications are
distinguishable from race discrimination and should be afforded a more
intermediate standard of review consistent with Fullilove and Metro
Broadcasting. It is wrong to have "consistency" between the standard of
review for discriminatory and benign racial classifications because the
first is a "No Trespassing" sign, where the second is a welcome mat.
Furthermore, there is solid justification for treating the 5th and 14th
amendments as affording different levels of protection, namely that
Congressional deliberations about a matter should be accorded far
greater deference than those of a State or municipality. Lastly, the
stigma of affirmative action is surely less than that of discrimination.
** San Antonio School Dist. v. Rodriguez, (1973)
2. Facts: Texas had a system of financing public education by allowing
the local school boards the power to levy higher property taxes in their
districts to pay for school upgrades. However, the state had a minimum
educational standard level which applied to all schools. In urban San
Antonio, there were disparities between the qualities of the school
districts because the affluent children attended better school (paid for
through local taxes) than the hispanic children, because the hispanic
neighborhoods could not pay higher property taxes.
3. Procedural Posture: The District Court, exercising strict scrutiny,
held that the Texas schme violated equal protection.
4. Issue: Whether the Texas system impinges on any fundamental right
(i.e. is quality public education a fundamental right), thereby
requiring strict scrutiny.
5. Holding: No.
6. Majority Reasoning: There is no reason to give quality of education
the level of fundamental right for equal protection purposes. First, not
all poor people live in the poorest school districts, and do not have
the traditional indicia of suspectness (i.e. "immutable" characteristics
- poor people can improve their financial situation). Second, the
students have not been denied all public education, they is just not as
much money being spent on them (and there has been no correlation shown
between money and quality of education, or that the minimum standard of
the state funding guarantee is insufficient to provide meaningful
education). Equal protection does not require precisely equal
advantages. Although education is important because it leads to informed
voters and effective free speech, it is not explicitly or implicitly
constitutionally protected. Lastly, the appropriate standard here is
rational basis, and the Texas scheme passes.
7. Dissent Reasoning: [Marshall] Even if education is not a
"fundamental" right, the court should apply higher level scrutiny than
"rational basis." Many fundamental rights are simply closely enough tied
to explicitly protected rights that they must be protected to give the
explicit rights any meaning. The local school district wealth bears no
relation to the Texas state interest in providing educational
opportunity to the students by vesting power in the local school
districts to tax. Since the amount of revenue depends largely on the
physical amount of property located within the district, a factor over
which voters have no control, the means is not related to the ends.
** Plyler v. Doe, (1982)
2. Facts: Texas had a law denying benefits to schools to teach
undocumented illegal school age children, and allowing these schools to
deny admission to those students as well.
3. Procedural Posture: The lower courts held that the exclusion of the
children from free public education violated equal protection.
4. Issue: Whether the exclusion of the non-documented illegal immigrant
children from free public education violates equal protection.
5. Holding: Yes.
6. Majority Reasoning: Illegal immigrant children are entitled to 14th
amendment protection. Although the right to free public education is not
fundamental, and illegal aliens are not a suspect class, the children
are not able to control their status, and should not be held accountable
for the actions of their parents. By depriving the children of the
education, the law forecloses any means by which that child may elevate
himself into a functioning member of society. As such, the law must
further some substantial goal of the State [intermediate level of
review]. There appear to be no federal level objectives in denying these
children education. The state's justification of preserving scarce
resources for legitimate citizens is not rationally served because
employment, not education, is the dominant reason for illegal
immigration. The state's justification that undocumented children are
unlikely to remain in the U.S. and become citizens is not supported by
7. Dissent Reasoning: The court is overstepping its bounds in finding a
non-fundamental right, and a non-suspect class, to require special
judicial scrutiny. Their reasoning is wholly result-oriented, and
against precedent. The proper measure of review is rational basis. It is
not irrational for a state to exclude illegitimate children from school
in order to save costs. However, this is a choice for the legislature.
** Shapiro v. Thompson, (1969)
2. Facts: The District of Columbia had a federal statute, [and Penn. and
Conn. both had state statutes] which required that an indigent family be
present in the state for at least one year before being eligible for
3. Procedural Posture: The lower courts invalidated the statutes on
violation of equal protection grounds.
4. Issue: Whether the statutes violate equal protection.
5. Holding: Yes.
6. Majority Reasoning: The statute divides the indigent population into
two similar classes, residents > 1 yr. and residents < 1yr. The first
class is granted and the second denied welfare benefits based on this
arbitrary distinction, even though these are the very means that the
families subsist for their food, shelter and other necessities of life.
The state makes several justifications that are constitutionally
impermissible objectives: 1. deterring people from entering the state is
an unconstitutional burden on the fundamental right to travel, even if
it is only to deter them from obtaining larger benefits, and 2.
distinguishing between whether the person has made significant past
contributions to the community is impermissible because it would
theoretically preclude any state protection. Also, the permissible
objectives forwarded are not sufficiently "compelling" to justify the
burden on the fundamental right to travel: 1. there is no evidence that
the waiting period promotes budget predictibility, 2. that it is
administratively efficient will not withstand scrutiny, 3. there are
less drastic means available to guard against fraud, and 4. it does not
promote employment because that logic would require that those over one-
year residents also have a waiting period.
7. Dissent Reasoning: [Harlan] Apparently the majority has expanded the
list of "suspect" classifications unwisely. If the right to travel is
fundamental [which it is] then it does not require special
constitutional protection under equal protection, and should be treated
under the 14th amendment's due process clause. Thus, the proper question
should be whether the governmental interests served by the residence
requirements outweigh the burden imposed by the right to travel. Here,
they do. The court should not sit as a "super legislature" to second
guess the priorities of the state governments.
8. Notes: In Memorial Hospital v. Maricopa County, (1974), the court
reexamined and relied on Shapiro in invalidating an Ariz. requirement of
a year's residence in a county as a condition to an indigent's receiving
free non-emergency hospitalization or medical care. The court stated
that the essential holding in Shapiro was that strict scrutiny was
required when the residency requirements were "penalties" on the right
to travel, and that depended in turn on whether the subject of the
statute was "a basic necessity of life." Since medical care is clearly a
basic necessity, and the residency requirement is a penalty on that, the
statute is unconstitutional because it does not support a "compelling"
state interest. However, in Sosna v. Iowa, (1975), the court upheld a
state statute requiring one-year residency before bringing a divorce
action against a non-resident. The majority distinguished Maricopa
County on the basis that the law only postponed the plaintiff's right
[to court access], in contrast to the Maricopa statute which
irretrievably foreclosed the indigent's rights. In Zobel v. Williams,
(1982), the court struck down (under equal protection) an Alaska law
distributing the income from its natural resources to adult citizens in
varying amounts depending on the length of residence. Justice O'Connor's
concurrence based the result on the privileges and immunities clause
[because she felt that there was nothing invidious or irrational about
1. The Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer),
2. Facts: In the latter part of the Korean war, labor disputes led to a
threatened strike by the steel workers. President Truman issued an
executive order directing the Secretary of Commerce to seize the steel
mills and keep them running. The Secretary issued orders to the
presidents of the steel companies, directing them to keep the mills
open. The next morning, the President sent a message to Congress
reporting his action and promising to abide by their decision either
way. Congress took no action. However, there was evidence that Congress
disapproved of allowing the President to exercise such power because a
few years prior, they removed a clause from the Taft-Hartley act that
would have given the President power to seize an industry in case of
3. Procedural Posture: The trial court issued a preliminary injunction
restraining the Secretary from continuing possession. The court of
appeals stayed the injunction. The Supreme Court accepted the case
promptly due to the importance of the subject matter.
4. Issue: Whether the president had the power under these circumstances
to seize the steel mills of the country.
5. Holding: No.
6. Majority Reasoning: There is no express power in the Constitution
supporting the president's actions. The government claims that the power
should be implied from the aggregate of the presidential powers under
the Constitution. However, the order can not be sustained under the
power of the Commander in Chief of the armed forces because that power
is reserved for military commanders in the theater of war and is not
broad enough to cover the situation here. This is a job for the nation's
lawmakers, not the military authorities. Also, the president's power to
see that the laws are faithfully executed refutes the idea that he is to
be a lawmaker. Congress has the exclusive constitutional power to make
laws necessary and proper to carry out the powers vested by the
constitution in any officer thereof. Thus, this order is
7. Concurrence Reasoning: [Frankfurter] felt that the situation was more
complicated and flexible. However, in view of the Taft-Hartley act,
congress has expressed its will to withhold this power from the
president in cases like this. In effect, the Congress has said, "ask for
seizure power from us if you feel it is needed in a specific situation."
[Jackson] felt that the presidential powers were not fixed, but rather
fluctuate, depending on their congruence with Congress. There are three
categories: 1. where the president is acting pursuant to an express or
implied authorization of Congress - broadest powers, limited only by the
Constitution, 2. where the president is acting in the face of
Congressional silence - more narrow powers limited by the "zone of
twilight" where there may be overlap with congressional powers, and 3.
where the president is acting in opposition to Congress - most narrow
powers, supported only by his expressly granted constitutional powers,
and then still limited by any overlap Congress may have [Congress' will
is dominant in case of overlap]. This order falls into the third
category, and since there is no express authority, it must fall, even
when it may be otherwise justified by "emergency."
8. Dissent Reasoning: The president has some power under the
constitution to meet a critical situation in the absence of express
statutory authorization. Looking at history (particularly WWII), there
were several instances when the president made similar orders. The fact
that Congress and the courts have consistently recognized and given
their support to such executive action indicates that such a power of
seizure has been accepted throughout our history.
** INS v. Chadha, (1983)
2. Facts: A section of the Immigration and Nationality Act provides that
the Attoryney General could suspend the deportation of a deportable
alien if the alien met specified conditions and would suffer "extreme
hardship" if deported. However, the act also had a provision which
provided for legislative veto by one house if the Congress disagreed
with the Attorney general's decisions as to any particular alien. Chadha
was an Indian whose education was not yet complete, but whose Visa had
3. Procedural Posture: The Court of Appeals found that the provision was
unconstitutional as a violation of separation of powers.
4. Issue: Whether the one house legislative veto provision in the act
was unconstitutional as a violation of separation of powers since it did
not provide for bicameral support or presentation to the President.
5. Holding: Yes.
6. Majority Reasoning: [Burger] The fact that a given law is efficient
will not save it if it is contrary to the constitution. The constitution
is very explicit about its grant of powers among the executive and
legislative branches. The framers were very clear that it was paramount
that the legislative power require bicameral support and presentation to
the President (except for some minor exceptions not relevant here). The
act is primarily legislative in nature. Although it delegates some broad
legislative authority to the executive branch, it is no less
legislative. As such, it requires bicameral support and presentment.
7. Concurrence Reasoning: [Powell] felt that Congress was acting in a
judicial role in providing for judicial-type review of the actions of
the executive branch.
8. Dissent Reasoning: [White] felt the majority opinion was too broad
because it read on all legislative vetoes, which weren't implicated by
the present fact situation. The power to exercise legislative veto is
not the power to write new law without bicameral support or presidential
consideration. The veto must be authorized by statute and may only
negative what an Executive deparment agency has proposed.
** Bowsher v. Synar, (1986)
2. Facts: The Gramm-Rudman-Hollings Act established maximum annual
permissible deficits designed to reduce the federal deficit to zero by
1991. If needed to keep the deficit within the maximum, the Act required
the OMB and the CBO to make recommendations to the Comptroller General
as to the budget reductions necessary in each program. The Comptroller
General office was created by the budget and accounting office, in an
act that required nomination by the President, but removal [for cause]
by a Congressional resolution, subject to presidential veto.
3. Procedural Posture: The act establishing the Comptroller General
office was challenged as being a violation of the separation of powers
because it gave Congress the power to remove an official having
4. Issue: Whether the act establishin the Comptroller General's office
is unconstitutional as a violation of separation of powers.
5. Holding: Yes.
6. Majority Reasoning: Congress cannot reserve for itself the power of
removal of an officer charged with the execution of laws except by
impeachment. To permit the execution of the laws to be vested in an
officer answerable only to Congress would, in practical terms, reserve
in Congress control over the execution of the laws. To permit an officer
controlled by congress to execute the laws would be, in essence, to
permit a congressional veto of the kind struck down in Chadha. The
Comptroller is an executive officer because of his duties. The scope of
the reasons allowable for his removal are broader than that allowed for
impeachment, which is only for "treason, bribery, or other high crimes
and misdemeanors." Even though it may be a small chance of removal in
practice, the Comptroller is not sufficiently free from congressional
influence. Thus, the fallback provisions of the Act, wherein Congress
itself makes the ultimate budget decisions by joint resolution, must be
7. Dissent Reasoning: [White] The removal by Congress of the Comptroller
is of such minimal practical significance that it presents no threat to
the scheme of separation of powers. It requires 2/3 approval by both
houses to override a presidential veto of the Comptroller's removal.
** Morrison v. Olson, (1988)
2. Facts: The Ethics in Government Act of 1978 provided that The
Attorney General may ask for the appointment of a special counsel by a
Special division of three Circuit Judges in order to investigate and
prosecute high-ranking government officials for violations of federal
crimes. Once appointed, the Special counsel can only be removed by the
Attorney General personally (not the president) and only for "good
cause" (not at will).
3. Procedural Posture: A group of persons moved to quash subpoenas
issued by the Special counsel, claiming that the Act was unconsitutional
as a violation of separation of powers.
4. Issue: Whether the Act is was unconsitutional as a violation of
separation of powers because it limits the President's authority to
remove an executive officer.
5. Holding: No.
6. Majority Reasoning: The special counsel, due to the limited tenure,
duration, and duties of her office, is an "inferior officer" for
Appointment clause purposes. As such, her appointment may be vested by
congress in the courts. The court has never held that the Constitution
prevents Congress from imposing limitations on the President's power to
remove al executive officials simply because they wield "executive"
power. The power to vest appointment in other departments implies the
power to limit and regulate removal. The imposition of a "good cause"
standard is not unduly limiting. The president's need to control the
Special Counsel is not so central to the functioning of the executive
branch as to require as a matter of constitutional law that the special
counsel be terminable at will by the President. This case does not
involve a usurpation of executive power by Congress. The attorney
general still has the power to refuse to ask for appointment of a
7. Dissent Reasoning: [Scalia] The framers of the constitution
intentionally vested all of the executive power in the president. As
such, any person executing purely executive power must be under the
exclusive control of the President, and thus terminable at will. A
system of separate and coordinate powers necessarily involves an
acceptance of exclusive power that can theoretically be abused. The
majority has replaced a constitutional requirement with an unprincipled
"balancing test" having no guidance.
** United States v. Curtiss-Wright Export Corp., (1936)
2. Facts: Congress passed a joint resolution authorizing the President
to embargo Bolivia and Paraguay who were fighting in Chaco. Curtiss-
Wright was indicted for conspiracy to violate the embargo.
3. Procedural Posture: Curtiss-Wright challenged the resolution as being
an unconstitutional delegation of legislative power to the President.
The lower court sustained the challenge.
4. Issue: Whether the resolution is unconstitutional as a delegation of
legislative power to the President.
5. Holding: No.
6. Reasoning: The resolution may have been unconstitutional if it
related solely to internal domestic powers, where the President's power
is more constitutionally limited. However, the origin and nature of the
President's domestic and foreign powers is very different. The
President's foreign power is not dependent solely upon the affirmative
grants of the constitution. The President has the power to negotiate
treaties, and is the representative of the U.S. in international
relations. He is in a better position than Congress to handle foreign
affairs because he is privy to classified information. Thus, it is
unwise to narrowly limit the President's foreign power.
7. Notes: The War Powers resolution of 1973 now provides that Congress
shall be consulted beforehand "in every possible instance" when the
President is introducing troops into situations where hostilities are
imminent. Afterwards, he must report within 48 hours the reasons and
constitutional or statutory basis for his action, and any other
information that Congress may request. Also, he must continue to consult
with the Congress on a periodic basis. Then, if Congress does not
declare war, or otherwise granted statutory power, the President must
remove the troops within 60 days, or immediately if directed by
** The Prize Cases, (1863)
2. Facts: The civil war had not yet been declared a war, but Congress
had passed several resolutions giving the President some limited powers
to take action against the seceding states. The President instituted a
naval blockade and seized several ships.
3. Procedural Posture: The seizures were challenged as unconstitutional.
4. Issue: Whether the President had the authority, given the
circumstances, to initiate a naval blockade in the absence of an express
declaration of war by the Congress.
5. Holding: Yes.
6. Reasoning: Congress does not have the power to declare war against a
domestic state. However, the President, as the chief executive, has the
statutory power to supress insurrection, and to see that the laws are
carried out. In fact, he has the obligation to protect the union. It is
the President's decision whether force is necessary when it is
authorized. In any event, the Congress subsequently passed laws
retroactively granting the power, without admitting that it did not
7. Dissent Reasoning: The Congress alone has the power to declare war,
and the naval blockade was war-like force. There is no difference
between a civil war or a public war. Also, the subsequent grant by
Congress was an ex post facto law.
8. Notes: Before the Iraq war, President Bush sent massive amounts of
U.S. troops to Saudi Arabia, relying on his constitutional powers as
Commander in Chief, and denied the efficacy of the War Powers
resolution. Debate ensued as to whether the President had the power to
take action towards starting a war without Congressional declaration of
war or statutory grant of power. In Dullum v. Bush, 54 members of
Congress sued to prevent the President from initiating an offensive
attack without first seeking the approval of the Congress, claiming that
it was a justiciable, and not merely a political question. However, as
the Jan 15th deadline approached, Congress voted to authorize
Presidential use of force and the issue became moot. In 1967, the
Fulbright committee issued a report recounting the expanding assertion
of power of the Presidency, and recommending that Congress reassert its
constitutional authority over the use of the armed forces by using joint
resolutions that specifically grant definite and limited power rather
than merely express approval for indefinite actions to be taken by the
President. After that, Congress also used its purse string powers to cut
off funding for american armed forces involvement in Cambodia.
** Nixon v. Fitzgerald, (1982)
2. Facts: Fitzgerald lost his management position with the Department of
the Air Force after "blowing the whistle" on significant budgetary
overruns on the building of a military transport plane.
3. Procedural Posture: Fitzgerald sued the President and several of his
officials for damages, alleging violation of his First Amendment and
other statutory rights due to his firing.
4. Issue: Whether the President is entitled to absolute immunity from
damages liability predicated on his official acts.
5. Holding: Yes.
6. Majority Reasoning: [Powell] The absolute [rather than qualified]
immunity is required due to the unique position of the Presidency. The
President must not be diverted from a proper exercise of discretion for
fear of being subject to a lawsuit for private damages. The President is
required to make decisions every day that would "arouse the most intense
feelings," and so must enjoy absolute immunity for his official acts.
There may be cases where the Congress could take some affirmative action
to subject the President to personal jurisdiction, but the court would
have to weigh the constitutional weight of the interests to be served
with the danger of intrusion on the authority and function of the
Executive Branch. There are other ways to keep the President from
abusing power, namely the press, impeachment, re-election, and personal
7. Dissent Reasoning: [White] Attaching absolute immunity to the office
of the President, rather than to particular activities that the
President might perform places the President above the law. The scope of
immunity should be determined by the function, not the office, and the
dismissal of employees does not fall under a constitutionally assigned
executive function which would be substantially impaired by the
possibility of a private action for damages.
8. Notes: In Harlow v. Fitzgerald, the court refused to extend blanket
immunity to the top Nixon aids involved in the same conspiracy as
charged in the above case. Qualified immunity was the proper standard,
unless perhaps the aid was entrusted with "discretionary authority in
such sensitive areas as national security or foriegn policy." However,
the court refused to give the Attorney General absolute immunity even
while engaged in actions related to national security in Mitchell v.
** Nixon v. United States, (1993)
2. Facts: Nixon was a Federal Circuit Court judge who was accused of
taking gifts from a prominent local businessman in return for asking a
local DA to halt the prosecution of the businessman's son.
3. Procedural Posture: The House adopted three articles of impeachment,
and then the Senate, subsequent to its own impeachment rules, appointed
a subcommittee to hear the evidence. The subcommittee then summarized
the facts and findings for the entire Senate, and open arguments were
held on the floor, which culminated in the required 2/3 vote to convict.
Nixon appeals on the grounds that the power to "try" impeachments in the
Constitution requires a full judicial proceeding where the entire Senate
hears all of the evidence.
4. Issue: Whether the Senate procedural rule allowing for a subcommittee
to hear and summarize the evidence violates the Impeachment clause which
provides that the "Senate shall have the sole Power to try all
5. Holding: No. This is not a justiciable question, it is a political
6. Majority Reasoning: [Rehnquist] A controversy is non-justiciable,
i.e. it involves a political question, where there is "a textually
demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and
manageable standars for resolving it." Here, the power to "try" an
impeachment is a broad power that precludes any manageable standards.
Also, since the Senate has the "sole" power to try impeachments, it must
be able to function without interference in these proceedings. Judicial
review of the Senate's trial would introduce risks of violation of
checks and balances, because it would make the Judicial Branch the final
reviewing authority of the "important constitutional check" placed on
them by the Framers.
7. Concurrence Reasoning: [White] This is a justiciable question, and
may be judicially managed fairly.
** United States v. Nixon (The Nixon Tapes Case), (1974)
2. Facts: Several of Nixon's top aids were indicted in a criminal
conspiracy proceeding in relation to the Watergate burglary.
3. Procedural Posture: The District Court, acting on motion of the
special prosecutor, ordered that the President produce taped
conversations with the aids in order to determine who was involved to
what extent. The President refused to comply with the subpoena duces
tecum, invoking executive privilege. The District Court rejected his
privilege, and the President appealed. While the case was before the
Court of Appeals, the Supreme Court granted cert. before judgment.
4. Issue: Whether an assertion of Presidential privilege as to
subpoenaed materials for use in a criminal trial is valid when it is
based solely on the general interest in confidentiality of Presidential
5. Holding: No.
6. Reasoning: The President does not have the power to determine the
scope of his own privilege. Thus, this is a jusiticialbe question. It is
the function of the court to say what the law is, and thus separation of
powers [Marbury] supports judicial review of executive privilege.
Although the executive privilege is broad in scope, neither the doctrine
of separation of powers, nor the need for confidentiality of high-level
communications, without more, can sustain an absolute, unqualified
Presidential privilege of immunity from judicial process under all
circumstances. The interests of the Presidential privilege must be
weighed against the interests of criminal justice. Since, the
Presidential interest is low in this case [because these are not
national security related matters], and the interests of the criminal
justice system are high, the executive privilege must yield to the need
for evidence in the pending criminal trial.
** U.S. Term Limits, Inc. v. Thornton, (1995)
2. Facts: Arkansas, by popular vote, adopted a State constitutional
amendment that prohibited the eligibility of candidates for placing
their name on the ballot for re-election if they have already served 2
terms (in the U.S. Senate) or 3 terms (in the U.S. House).
3. Procedural Posture: The lower courts found that the amendment
violated the federal constitution.
4. Issue: Whether the states may prescribe additional qualifications for
candidates who are otherwise eligible under the federal constitution to
have their name placed on the congressional ballot.
5. Holding: No.
6. Majority Reasoning: [Stevens] There is overwhelming historical
evidence that it was the intent of the Framers that the qualifications
set forth in the Constitution for membership in the House and Senate be
the exclusive requirements. It is fundamental that the people be able to
choose who is to represent them, not the states. In Powell, the court
held that the House of Representatives has no authority to exclude any
person, duly elected by his constituents, who meets all of the
requirements for membership expressly prescribed in the Constitution.
This reasoning applies to the power of States to prescribe additional
qualifications as well. The power to add additional qualifications is
not within the original powers of the states, and thus not preserved by
the 10th amendment. Also, even if it were and original power, it has
been divested by the constitution. Only an amendment to the federal
constitution can change the framework of the election process so
7. Dissent Reasoning: [Thomas] Nothing in the Constitution deprives the
people of each state to prescribe eligibility requirements for the
candidates who seek to represent them in Congress. The states do enjoy
reserved powers over the selection of their congressional
** Marsh v. Alabama, (1946)
2. Facts: Marsh, a jehovah's witness, was convicted of trespassing when
she passed out religious fliers in the company-owned town of Chicksaw
against the corporate owner's permission.
3. Procedural Posture: Marsh challenged the conviction under the 1st
amendment right to free speech, and the corporation defended on the
ground that the owner of private property has a privacy interest in
excluding persons and behavior that he does not desire.
4. Issue: Whether the conviction violates the 1st amendment, even though
the town is privately owned.
5. Holding: Yes.
6. Reasoning: The company town was only different from other towns in
that the title was privately owned. The owner, for his own advantage,
had opened up his property for use by the public in general, and thus
his rights are limited by the constitutional rights of those who use the
property. Since these facilities are built and operated primarily to
benefit the public, and since their operation is "essentially a public
function," it is subject to state regulation. Here the activity was
sufficiently state-like to balance the interests of the owner against
the constitutional rights of the user.
7. Notes: Marsh was eventually limited to its facts because of the
difficulty in maintaining the argument that a private property owner was
serving a sufficiently public function. However, it served as an
alternate grounds for the decision in Evans v. Newton, in which a
privately owned park was forbidden to exercise racial discrimination
since the "service rendered by a private park of this character is
municipal in nature." In Jackson v. Metro Edison, the Court refused to
extend the public function doctrine to the actions of a privately owned
utility licensed and regulated by a state public utilities commission.
Rehnquist noted that there was no state action present, even though the
utility was state regulated, because utility provision was not a
function traditionally exclusively reserved to the state. Also, the
Court rejected a state action attack in Flagg Bros., Inc. v. Brooks,
holding that a warehouseman's proposed sale of goods entrusted to him
for storage to satisfy a warehouseman's lien under the UCC did not
constitute state action.
** Shelley v. Kraemer, (1948)
2. Facts: A 1911 covenant signed by the private property owners in a
residential neighborhood to exclude blacks and asians for 50 years.
Petitioners are blacks who purchased houses from white owners despite
the racial covenant.
3. Procedural Posture: The respondents brought a successful state action
to enforce the covenant.
4. Issue: Whether private property covenants that would violate the 14th
amendment if enacted as law are nevertheless void under the 14th
amendment if enacted by private persons and enforced by the state.
5. Holding: Yes.
6. Reasoning: Although the covenants would not be violative of equal
protection if they were solely private in nature, here there is more.
These are cases in which the purposes of the agreements were secured
only by judicial enforcement by state courts of the restrictive terms of
the agreements. State action refers to all exertions of state power.
7. Notes: In Barrows v. Jackson, the Court used Shelley to block
enforcement of a restrictive racial covenant by instituting a suit for
damages [rather than absolute exclusion as was the case in Shelley].
However, in Evans v. Abney, the Court refused to extend Shelley to cover
the case where a park had been willed in trust to the city for operation
as "whites only." The court rested its decision on the fact that the
trust was void for inability to give effect to the donor's intent, and
thus the property reverted to the donor's heirs. However, in
Pennsylvania v. Board of Trusts, the Court held that a board of trustees
made up of government officials could not constitutionally exclude
blacks from a college that was donated in trust under the condition that
it be white only, and that substituting private trustees for the
government officials was no more constitutional. In Bell v. Maryland,
the court split 3-3 on whether Shelley should apply to prevent
enforcement of trespassing laws to prosecute black sit-in protestors
when the private owner of the restaurant personally discriminated
against black patrons.
** Burton v. Wilmington Parking Authority, (1961)
2. Facts: A state-operated parking building had a restaurant facility
which it leased to a privately-owned business. The restaurant had a
policy of discriminating against blacks, and refused to serve Burton
solely because he was black.
3. Procedural Posture: Burton brought an action against the owner of the
restaurant and the state for violation of equal protection. The state
supreme court held that the restaurant was acting in a purely private
capacity under the lease, and that its action was not that of the
lessor, and therefore not state action.
4. Issue: Whether a private restaurant that is leased as a part of a
state-owned public facility may discriminate on the basis of race if
there is a sufficient conncetion or nexus between the tenant restaurant
and the state owned public facility.
5. Holding: No.
6. Reasoning: The restaurant and the parking garage are inseparably
interdependent. The restaurant relies on the presence of parking for its
customers, and the parking garage relies on the rent from the restaurant
for operating costs. Thus, the state has made itself a party to the
discrimination by failing to exercise its power to stop it by writing
such terms into the lease. The nexus here is so close that the
discrimination can not be considered to be purely private in nature, but
rather the state is involved "to some significant extent" with the
7. Notes: In Moose Lodge v. Irvis, the Court refused to extend Burton to
the case of state licensing, rejecting a state action challenge to a
private club's discrimination, solely on the ground that the private
club held a state liquor license. Also, in CBS v. Democratic National
Comm., the Court refused to find that refusal of editorial advertisments
was state action, solely on the ground that CBS was granted a broadcast
** Edmonson v. Leesville Concrete Co., (1991)
2. Facts: Race-based peremptory challenge of a civil juror.
3. Procedural Posture: Alleged violation of 14th amendment.
4. Issue: Whether race based peremptory challenges by a private citizen
in a civil case violate the 14th amendment equal protection under the
state action doctrine.
5. Holding: Yes.
6. Majority Reasoning: [Kennedy] The claimed constitutional deprivation
here results from the exercise of a right having its source in state
authority. There are several guidelines illustrated by the previous
cases, 1. the extent to which an actor relies on governmental assistance
and benefits [Burton], 2. whether the actor is performing a traditional
governmental function [Marsh], and 3. whether the injury caused is
aggravated in a unique way by the incidents of governmental authority
[Shelley]. This case meets all three of the guidelines because the
discrimination is occuring in a judicial proceeding, during the
selection of a jury, which is a unique governmental entity bound by race
7. Dissent Reasoning: [O'Connor] It is necessary after Jackson v. Metro
Edison, for a showing that the government was involved in the specific
decision challenged. Here all of the government action is preliminary to
the use of a peremptory challenge, it does not constitute participation
in the challenge itself. Trials are adversarial proceedings in which
attorneys act on behalf of private clients, not the government. [Scalia]
felt that there was no consitutional basis for the holding and it was
just evidence of the majority's hostility to race-based judgments.
8. Notes: In Lebron v. National Railroad Passenger Corp., (1995), the
Court [Scalia] held that Amtrak was an "agency or instrumentality of the
United States" [since the U.S. had created the corporation and reserved
the power to appoint members of its board] and therefore was bound by
the first amendment to prohibit content-based restrictions on the
leasing of billboards for political purposes.
** Frothingham v. Mellon, (1923)
2. Facts: A federal taxpayer disagreed with the Treasury expenditures in
a Congressional Act. She felt that it exceeded the general power of the
Congress and thereby invade the province of the states under the 10th
3. Procedural Posture: The taxpayer filed suit challenging the act under
the theory that as a taxpayer, she would have property taken without due
process, because the expenditure would result in an increase, generally,
in her taxes.
4. Issue: Whether a single federal taxpayer has standing to sue the
federal government to prevent expenditures if her only injury is an
anticipated increase in taxes.
5. Holding: No.
6. Reasoning: The taxpayer's interest in the treasury money is shared
with millions of others and is too small to determine. There are too
many uncertain and fluctuating factors to determine the effect this act
might have on one person's taxes. Furthermore, to decide this case,
where there is no controversy, would be to assume a position of review
of the governmental acts of another co-equal department, an authority
which the court does not possess.
** Flast v. Cohen, (1968)
2. Facts: Taxpayers disagreed with the congressional spending in
subsidizing religious private schools, claiming that it violated the
3. Procedural Posture: The taxpayers brought an action challenging the
spending act as unconsitutional under the establishment clause, and the
lower court dismissed under Fronthingham.
4. Issue: Whether a taxpayer has standing when he alleges that the
congressional action under the taxing and spending clause is in
derogation of those constitutional provisions which operate to restrict
the exercise of the taxing and spending power.
5. Holding: Yes.
6. Majority Reasoning: The standard is lower when a taxpayer attacks a
federal statute on the grounds that it violates the establishment and
free exercise clauses of the first amdendment. Frothingham does not
serve as an absolute bar to actions by taxpayers, only as authority for
exercise of discretion and self-restraint. The court is not a forum for
a taxpayer to air generalized grievances about the conduct of
government. If the taxpayer has a personal stake in the outcome of the
controversy, and the parties have adverse legal interests, then there is
standing if the taxpayer can show nexus between the status asserted and
the claim sought to be adjudicated. That nexus exists where there is a
specific constitutional limitation imposed on the taxing and spending
power of the Congress.
7. Dissent Reasoning: [Harlan] The court should not grant access to
taxpayers on its own in the absence of permission by Congress. "Public
actions" should only be brought under the authority of Congressional
8. Notes: In U.S. v. Richardson, the court held that a taxpayer did not
have standing to challenge the non-publication of CIA expenditures, on
the ground that there was no allegation that the funds were being spent
in violation of a specific constitutional limitation on Congress'
spending power. Also, in Schlesinger v. Reservists to Stop the War, the
court refused to recognize standing of the challengers because their
injury was not "concrete" enough.
** Warth v. Seldin, (1975)
2. Facts: s are minority citizens and associations of Rochester, NY.
Cons are members of the zoning commission of Penfield, a city adjacent
to Rochester that has allegedly discriminatory zoning laws, preventing
the building of low and moderate income housing.
3. Procedural Posture: The lower courts dismissed the case for lack of
4. Issue: Whether the s had standing.
5. Holding: No.
6. Majority Reasoning: The s must show that they have suffered some
concrete injury or threatened injury from allegedly illegal action to
satisfy the consitutional requirements of cases and controversies of
Art. III. Also, the s must show that their grievance is not just a
generalized one of a large class, and that they are not bringing an
action on behalf of a third party. The s must also show that a
favorable ruling would provide actual relief, not just speculative
relief. Here, none of the minority citizens has alleged facts that show
an actual injury, they are merely representatives of a larger class.
None of them has ever lived, or alleged that they would live in Penfield
were the zoning laws different. Also, they have not show that a
favorable ruling would allow them to get the housing they need. The
various organizations fail standing for the same reasons.
7. Dissent Reasoning: [Brennan] The court views each separate as if it
were bringing a separate lawsuit, rather than seeing that their
allegations are intertwined to be sufficient to overcome a motion to
dismiss for lack of standing. One can not expect the s to have enough
knowlege, prior to discovery, to allege specific enough facts that the
8. Notes: In Northeastern Florida Chapeter General Contractors of
America v. City of Jacksonville (1993), the court distinguished Warth
and made it clear that the "concreteness" of the s planned conduct was
an important factor in the determination of standing. Here, the
contractors actually did bid on the contracts awarded to the minorities,
and could allege facts showing that they would have received the
contracts if not for the set-aside clause.
** Employment Div. Ore. Dept. of Human Res. v. Smith, (1990)
2. Facts: Oregon law prohibits the knowing use of the drug peyote.
Members of the Native American Church use the drug in ritual ceremonies
for religious purposes. When religious members were fired from their
jobs for using peyote, the unemployment division refused to pay them
unemployment benefits because they had been fired for work related
3. Procedural Posture: Oregon Supreme court held that the law as applied
here was an unconstitutional infringment on free exercise, reasoning
that the state interest in preserving the unemployment fund was
outweighed by the burden on free exercise. The Supreme Court granted
4. Issue: Whether a state may pass a general and neutral ban on all of
the use of a particular drug, even though the general ban may burden the
exercise of a particular religion.
5. Holding: Yes.
6. Majority Reasoning: The proper standard for a neutral and generally
applicable law is not strict scrutiny, or any type of balancing. The
government's ability to enforce generally applicable prohibitions can
not depend on measuring the effects on a particular religion. To make an
individual's obligation to obey such a lw contingent upon whether the
state's interest is "compelling" is to allow the individual to become a
law unto himself. Use of strict scrutiny in this context will dilute it
for other contexts.
7. Concurrence Reasoning: [O'Connor] Strict scrutiny is the proper test.
** Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, (1993)
2. Facts: Members of the church practice the Santeria religion which
practices animal sacrifices for various occasions. Sometimes the animal
is then eaten, sometimes it is not. Outrage in the community over the
animal sacrifices led the city council to ban all animal sacrifices
which were not for the purpose of food.
3. Procedural Posture: The district court found for the city, and the
court of appeals affirmed.
4. Issue: Whether a city may enact laws specifically prohibiting the
practice of certain religious rituals when such laws are directed
against a particular religion.
5. Holding: No.
6. Reasoning: A law which is specifically directed at regulating the
practice of a specific religion will be subjected to "the most rigorous
of scrutiny," unless it is both neutral and generally applicable
(Smith). The law here is very underinclusive, because the city's stated
purpose of promoting public health would be better served if they also
regulated disposal of animals killed by hunters, as well as disposal of
restaurant food, and the killing of pests. Since the city failed to
enact such other laws, its purpose could not be compelling.
** Schenck v. United States, (1919)
2. Facts: Cons had written and sent anti-draft propoganda to men who had
3. Procedural Posture: Con's were charged with conspiracy to violate the
Espionage Act, which made it a crime to willfully obstruct the
recruiting or enlistment of servicemen.
4. Issue: Whether the government may criminalize speech that poses a
"clear and present danger" to the U.S. government.
5. Holding: Yes.
6. Reasoning: The character of every act depends on the circumstances
which surround it. When a nation is at war, many things that are said
may be dangerous to the country, that would not otherwise be dangerous
in peacetime. Thus, the first amendment protection of speech is not so
broad as to cover all speech. A person who cries "fire" in a crowded
theater would not be protected by the first amendment.
** Abrams v. United States, (1919)
2. Facts: Con's produced and distributed leaflets that were pro-
revolution in Russia, and urged the U.S. factory workers to strike, so
that arms and munitions being produced for WWII would not be used
against the revolutionaries in Russia.
3. Procedural Posture: The Cons were charged with violation of a section
of the Espionage Act which prohibited advocating the "curtailment of
production of ordnance and ammunition, necessary to the production of
4. Issue: Whether the government may criminalize the speech presented
5. Holding: Yes.
6. Majority Reasoning: Based on Schenk, this speech is clearly
prohibitable. Even though their primary purpose was pro-Russian, it had
an anti-American effect by urging strikes.
7. Dissent Reasoning: [Holmes] The Cons did not intend to interfere with
the war against Germany. There was not clear and present danger present
because the leaflet was silly and posed no immediate danger to the U.S.
government. Free speech is necessary because it is the "marketplace of
ideas" that generates what the truth really is. The suppression of free
speech should only be permitted when necessary to immediately save the
** Dennis v. United States, (1951)
2. Facts: Cons were members of the Communist Party, and generated pro-
revolution materials in violation of the Smith Act. The communist party
was believed to pose a significant danger because it advocated violent
overthrow o the government.
3. Procedural Posture: Con's were convicted of conspiring to advocate
the overthrow of the government based on their writings.
4. Issue: Whether the government may criminalize speech which poses a
clear and present danger to the government.
5. Holding: Yes.
6. Majority Reasoning: The "clear and present danger" test does not
require that the government wait until overthrow is imminent. It only
need determine that there are persons advocating the overthrow of the
government by force and violence. It does not matter that the government
not actually be in any danger of overthrow due to its size and strength,
the gov't still has a substantial interest in putting down dangerous
threats. Judge Learned Hand's test is proper: "whether the gravity of
the evil, discounted by its improbability, justifies such invasion of
free speech as is necessary to avoid the danger." Also, it is not a
question of fact for the jury, the existence of sufficient danger is a
question of law for the judge.
7. Concurrence Reasoning: [Frankfurter] The clear and present danger
test is vague dogma. A better approach is to balance the interests of
the government against the interests of free speech and the individual.
It is not for the courts to determine the proper balance, Congress has
already done so by passing the act.
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